Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Vincent Arena v. Packaging Systems Corp., No. A-83244.
Michael J. Dowd, Dowd and Kocsis, for petitioner.
W. Marshall Dawsey, Griffin and Dawsey, P.C., for respondent.
Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.
[ 85 Pa. Commw. Page 554]
Vincent Arena appeals from a decision of the Pennsylvania Workmen's Compensation Appeal Board, which affirmed a referee's decision denying Arena's disability claim petition. We must determine the applicable scope of review where a second referee has made findings on the basis of testimony taken before another referee, and whether the second referee properly found that Arena had failed to prove a compensable injury.
Arena worked twenty-one years for Packaging Systems Corporation; during the final ten years, he worked as a printer, and his duties included cleaning printing equipment and diluting ink, both of which required the use of the chemical solvents methyl ethyl ketone (MEK) and methyl iso-butyl ketone (MIBK).*fn1
[ 85 Pa. Commw. Page 555]
In 1972, Arena began seeing Dr. Falkenburg, an ear, nose and throat specialist, for recurrent sore throats, and nasal and sinus infections. Dr. Falkenburg suggested that Arena change jobs; however, a union contract apparently prevented Arena's transfer to a different position. Acting on Dr. Falkenburg's advice, Arena left his job on October 1, 1976.
Arena filed a disability claim petition, and Referee Kanjorski conducted hearings and received evidence. However, Referee Kanjorski retired before making a final decision, and the case was then assigned to Referee Peleak, who reached a decision based on the assembled record.
The referee concluded that Arena had failed to show that he suffered a work-related disability and therefore dismissed his claim petition. On Arena's appeal, the board affirmed, noting that a referee may choose to accept the testimony of one medical expert over that of another.
Arena contends here that, because the referee who made the decision on his claim did not actually take the evidence in the case, but based his decision on the record, the board and this court are not confined to their usual restricted inquiries.*fn2 Rather, he contends, the referee merely reviewed ...