Appeal from the Order of the Workmen's Compensation Appeal Board in case of Morris E. Miller v. Warren Hess, Inc. and Commonwealth of Pennsylvania, No. A-80135.
Stephen P. Ellwood, with him Lester Krasno, for petitioner.
Robert Geller, with him Lisa Roth, and Frank L. Tamulonis, Jr., Zimmerman, Lieberman & Derenzo, for respondent, Warren Hess, Inc.
Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Rogers.
[ 70 Pa. Commw. Page 117]
Morris E. Miller brings this appeal from an order of the Workmen's Compensation Appeal Board affirming a referee's denial of his claim for benefits under the occupational disease provisions of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. 1 et seq. Specifically, the claimant filed a claim petition on April 4, 1978 alleging that he had, on August 25, 1975, become totally disabled as the result of silicosis sustained during his eighteen week tenure as a dragline operator for Warren Hess, Inc. Three hearings were held at which the claimant testified as to the nature of his employment and two physicians related contradictory opinions as to the extent and origin of the claimant's disability. On the basis of the evidence adduced at these hearings Referee Noonan made the following disputed factual findings:
[ 70 Pa. Commw. Page 1188]
. That claimant failed to meet his burden of proof, to produce evidence of record to support and substantiate that his condition worsened, subsequent to June 3, 1977.
9. That claimant failed to produce competent evidence of record, to support and substantiate that he was exposed to a silica hazard in his employment with the defendant-employer.
10. That claimant failed to produce competent evidence of record, to support and substantiate he was totally and permanently disabled, due to silicosis, as the result of his employment with the defendant-employer.
We first reject the claimant's contention that findings 9 and 10 set forth above were made in capricious disregard of the evidence. On the matter of the presence of a silica hazard at the site of Warren Hess' dragline operations, the whole of the evidence adduced is the testimony of the claimant as follows:*fn1
[After describing the dragline machine which he operated, the claimant responded to questions of his counsel.]
Q: And what was it that you were scooping up?
A: Sand; mostly sand and some gravel.
Q: And as you scooped the sand and gravel up what happened to ...