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DUQUESNE LIGHT COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (ZALAR) (05/24/85)

decided: May 24, 1985.

DUQUESNE LIGHT COMPANY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ZALAR), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Albert Zalar v. Duquesne Light Co., No. A-81495.

COUNSEL

John A. Lee, with him, A. William Stein, for petitioner.

No appearance for respondents.

Judges Williams, Jr. and Doyle and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Williams, Jr., did not participate in the decision in this case.

Author: Barbieri

[ 89 Pa. Commw. Page 497]

This is an appeal by the Duquesne Light Company (Duquesne) from an order of the Workmen's Compensation Appeal Board (Board). That order affirmed a referee's decision which awarded compensation for total disability to Albert Zalar (Claimant). We affirm.

This case has an extended and somewhat complex procedural history and presents the following scenario. Claimant was employed by Duquesne in the bituminous

[ 89 Pa. Commw. Page 498]

    coal industry from 1935 until April 28, 1977. With the exception of the last five years during which Claimant worked in a machine shop near the mine, his entire period of employment with Duquesne was underground in the mines. On July 29, 1977, Claimant filed a Petition for Compensation under Section 108 of The Pennsylvania Workmen's Compensation Act (Act)*fn1 alleging that he had become totally disabled due to coal miner's pneumoconiosis caused by his continued exposure to coal dust during his employment with Duquesne. On August 17, 1978, a referee awarded Claimant compensation for total disability. Duquesne appealed that decision to the Board which, on March 22, 1979, set aside the referee's decision and remanded the case back to the referee for the appointment of an impartial physician. That impartial physician was to examine Claimant and the record, prepare a report, and appear and testify before the referee. Referee Frank Roney appointed Dr. Jerry D. Silverman as the impartial physician, over the objection of Duquesne. Dr. Silverman examined Claimant on October 17, 1979 after which he submitted his report to the referee. On February 22, 1980, the referee entered a decision which again awarded Claimant compensation for total disability to date from July 1, 1977. Duquesne appealed that decision to the Board which, on September 4, 1980, remanded the matter back to the referee for a second time for the purpose of holding an evidentiary hearing. On May 11, 1981, after holding the additional hearings, the referee entered his decision which awarded Claimant compensation for total disability to date from July 1, 1977 and also directed Duquesne to pay the costs of the deposition of the impartial physician. Duquesne appealed that decision to the Board alleging bias on the part of Dr. Silverman as well as

[ 89 Pa. Commw. Page 499]

    contesting the evidentiary support for the decision and the imposition of the costs of the deposition of the impartial physician upon it. On June 9, 1983, the Board affirmed the referee's decision in its entirety and Duquesne filed a timely petition for review with this Court.

In this appeal, Duquesne contends that: (1) the referee erred in his appointment of Dr. Silverman as an impartial physician in light of its evidence of bias; (2) the finding that Claimant is totally disabled as of July 1, 1977 is not supported by substantial evidence; and (3) the referee improperly imposed upon Duquesne the costs of the deposition of the impartial physician. We shall address these issues seriatim.

Duquesne's allegation of bias on the part of Dr. Silverman to favor workmen's compensation claimants is based solely upon Duquesne's listing of the numerous instances in which Dr. Silverman has testified in workmen's compensation cases, predominantly in favor of the claimants, and that he had testified against Duquesne as a claimant's expert witness in an unrelated case. We have previously held that an attack on the bias of an expert witness is a matter of credibility which is to be determined solely by the referee. Armco Steel Corp. v. Workmen's Compensation Appeal Board (Kolar), 60 Pa. Commonwealth Ct. 195, 431 A.2d 363 (1981); Westinghouse Electric Corp. v. Workmen's Compensation Appeal Board (Bencloski), 41 Pa. Commonwealth Ct. 610, 399 A.2d 1178 (1979). Our review of the record, including the voir dire of Dr. Silverman by Duquesne's counsel, convinces us that the referee did not ...


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