Appeals from the Order of the Workmen's Compensation Appeal Board in case of Robert William Panaci v. Scranton School District, No. A-79632.
George W. Teets, for petitioner, Albert William Panaci.
Matthew Dempsey, with him John R. Lenahan, Jr., Lenahan and Dempsey, for respondent, Scranton School District.
Judges Craig, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail.
[ 66 Pa. Commw. Page 190]
Albert W. Panaci (Claimant) and the Scranton School District (Employer) have filed cross appeals from an order of the Workmen's Compensation Appeal Board (Board). The Employer, in its appeal docketed at No. 1182 C.D. 1981, challenges the order insofar as it affirmed a referee's award of workmen's compensation benefits to Claimant and refused to order a remand to the referee for the presentation of additional evidence. Claimant, in his appeal docketed at No. 1172 C.D. 1981, challenges the Board's allowance of a "proper credit" to the Employer for payments made to Claimant after the effective date of the compensation award. The two appeals have been consolidated for our consideration.
Claimant was employed as a high school principal at the West Scranton Senior High School when, at approximately 1:30 A.M. on February 15, 1978, he was notified that there was a fire at the school. The referee found, based on substantial evidence in the record, that Claimant arrived at the school shortly before 2:00 A.M. and remained until 5:00 A.M. during which time he inhaled large amounts of smoke and noxious fumes. Claimant returned to the school at 7:00 A.M. and remained in the building until 12:00 P.M. when he left due to chest pains. Later that same day, Claimant was admitted to the Moses Taylor Hospital and subsequently underwent surgery on his left lung on February 24, 1978, at St. Vincent's Hospital in New York. The surgery disclosed that Claimant's left lung was
[ 66 Pa. Commw. Page 191]
trapped by a mass of scar tissue which prevented proper expansion of the lung. Claimant has not returned to work since February 15, 1978.
Claimant filed a claim petition on June 2, 1978 alleging that the collapse of his lung was caused by the inhalation of smoke from the school fire on February 15. Employer filed an answer denying that Claimant had suffered a work-related injury. After five hearings the referee concluded that Claimant had met his burden of proving a compensable injury and awarded him compensation benefits for temporary total disability beginning February 16, 1978. On appeal, the Board affirmed and the instant cross appeals were taken.
Employer raises four issues in its appeal to this Court: 1) whether or not the referee's finding on causation was supported by substantial, and competent medical testimony; 2) whether or not the Board erred when it failed to remand for the appointment of an impartial physician; 3) whether or not this Court should order a remand to allow the Employer to present job availability testimony; and 4) whether or not the referee capriciously disregarded surveillance evidence presented by the Employer.
Since the Claimant prevailed before the referee and the Board, our scope of review is to determine whether an error of law has been committed, whether any fact findings are not based on subsequent evidence and whether constitutional rights have been violated. Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973).
Relative to the issue of causation, Claimant presented medical testimony by deposition of his treating physician, Dr. Nealon. Dr. Nealon first testified that the scarring found on Claimant's lung during ...