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ANDREW PRIGGINS v. WORKMEN'S COMPENSATION APPEAL BOARD (BETHLEHEM MINES) (07/15/83)

decided: July 15, 1983.

ANDREW PRIGGINS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BETHLEHEM MINES), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Andrew Priggins v. Bethlehem Mines, No. A-80692.

COUNSEL

Lester Krasno, for petitioner.

James E. Pocius, Lenahan & Dempsey, for respondent, Bethlehem Mines.

Judges Rogers, Blatt and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 75 Pa. Commw. Page 483]

This is an appeal by Andrew Priggins (Claimant) from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's denial of benefits. We affirm.

Claimant had been employed in the coal mining industry for approximately twenty-six years. From 1969, he was employed with Bethlehem Mines (Employer) as a weighmaster and quality inspector. In 1979 Claimant complained of shortness of breath and was advised by his physician to discontinue his employment.

Claimant filed a petition for occupational disease benefits claiming total disability due to anthracosilicosis. At a hearing before a referee on November 15, 1979, witnesses for the Claimant and for the Employer presented conflicting medical testimony. The referee then appointed an impartial physician to examine Claimant. The impartial physician testified at a hearing on December 30, 1980. On January 31, 1981, the referee rendered his decision and dismissed Claimant's petition. Claimant appealed to the Board and the Board affirmed. This appeal followed.

A claimant seeking benefits bears the burden of proving that he is totally disabled as a result of an occupational disease. Buckingham v. Workmen's Compensation Appeal Board, 57 Pa. Commonwealth Ct. 83,

[ 75 Pa. Commw. Page 484425]

A.2d 890 (1981). Our scope of review, when the party with the burden of proof does not prevail below is limited to a determination of whether the findings of fact are consistent with each other and with the conclusions of law and whether they can be sustained without a capricious disregard of competent evidence. Id. The referee found, and the Board affirmed, that Claimant had failed to prove that he is totally and permanently disabled due to anthracosilicosis or as a result of his exposure to a silica hazard in his employment at Bethlehem Mines. Claimant maintains that this finding cannot be sustained without capricious disregard of the testimony of the impartial physician.

At the hearing on December 30, 1980, the impartial physician testified that his examination showed Claimant to be suffering a mildly impaired pulmonary function due to anthracosilicosis. The doctor testified that in his opinion Claimant was not totally disabled but was unable to do work requiring physical exertion*fn1 and could not work in a dusty environment without a worsening of his condition.

Claimant urges that, given the doctor's testimony of partial disability, the burden of proof shifted to the Employer to show the availability of work which Claimant was capable of doing. Absent such proof the Claimant must be compensated for total disability. Yellow Freight System, Inc. v. Workmen's Compensation Appeal Board, 32 Pa. Commonwealth Ct. 147, 377 A.2d 1304 ...


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