Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Harold C. Marcks v. City of Allentown, Department of Public Safety, No. A-77591.
John P. Thomas, with him Charles W. Elliott, Thomas & Hair, for petitioner.
Howard M. Ellner, for respondents.
Judges Mencer, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Palladino did not participate in the decision in this case.
[ 65 Pa. Commw. Page 108]
Harold Marcks (Claimant) appeals from a decision of the Workmen's Compensation Appeal Board (Board)
[ 65 Pa. Commw. Page 109]
which affirmed a referee's dismissal of his claim petition under the occupational disease provisions of the Pennsylvania Workmen's Compensation Act (Act).*fn1
Claimant was employed as a firefighter for the City of Allentown (Employer) for thirty-three years. He retired on March 8, 1975. In January, 1978, Claimant filed a claim petition alleging disability from emphysema caused by his firefighting. After a series of hearings, the referee dismissed the claim petition, concluding that (1) Claimant failed to prove by sufficient competent evidence that his lung disease or diseases were caused by extreme over exertion in times of stress or danger or by exposure to heat, smoke, fumes, or gases, arising directly out of his employment for Employer as a fireman, within the meaning of Section 108(o) of the Act, 77 P.S. § 27.1(o), and that (2) Claimant failed to prove by sufficient competent evidence that he is totally or partially disabled due to exposure to the hazard of occupational disease in his employment for Employer, within the meaning of the Act. The Board, after reviewing the referee's findings and conclusions, affirmed his determination that Claimant was not totally or partially disabled within the meaning of the Act.
That the Board had some difficulty with the referee's findings of fact is evidenced by the comments in the Board's opinion. It was there noted that while the referee found that the Claimant's testimony was confusing and contradictory, he (the referee) "did not expressly find what the Claimant did do and what he didn't do." The Board observed that while the referee went into considerable detail to summarize the medical testimony which the Board characterized as "crucial," he (the referee) did not expressly accept or reject any of that testimony. Nevertheless, the Board
[ 65 Pa. Commw. Page 110]
opined that the reference by the referee to the fact that Claimant could have worked four or five years beyond his actual retirement date implies that the referee accepted testimony to that fact by Claimant's physician. The Board's opinion also states that the referee apparently relied on the testimony of the Employer's medical witness and on a portion of the testimony of the Claimant's medical witness concerning the Claimant's capability to work as a firefighter beyond his retirement date.
While it is beyond dispute that the referee is the fact-finder in workmen's compensation cases and that he is free to accept or reject the testimony of any witness including medical witnesses, Snyder v. Workmen's Compensation Appeal Board, 50 Pa. Commonwealth Ct. 227, 412 A.2d 694 (1980), the referee is required to find the critical facts in the case upon which he bases his conclusions. This is necessary in order to provide the Board and this ...