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BETHLEHEM MINES CORPORATION v. WORKMEN'S COMPENSATION APPEAL BOARD (LUKETICH) (11/08/85)

decided: November 8, 1985.

BETHLEHEM MINES CORPORATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (LUKETICH), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Nick Luketich v. Bethlehem Mines Corp., No. A-84637.

COUNSEL

Carl J. Smith, Jr., with him, Stephen I. Richman, Stephen I. Richman & Partners, for petitioner.

John B. McCue, McCue, Bertocchi & Heim, for respondent, Nick Luketich.

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

Author: Colins

[ 92 Pa. Commw. Page 606]

Bethlehem Mines Corporation (employer) has filed a Petition for Review of a decision of the Workmen's Compensation Appeal Board (Board). The Board affirmed a referee's decision granting compensation on the grounds that Nick Luketich (claimant) was permanently and totally disabled by pneumoconiosis, a compensable injury under Section 301(c)(2) of The

[ 92 Pa. Commw. Page 607]

Pennsylvania Workmen's Compensation Act (Act).*fn1 The employer raises two issues for our consideration: (1) whether the claimant sufficiently proved that his disability resulted from pneumoconiosis rather than his cigarette smoking; and (2) whether the referee's findings of fact were sufficiently detailed so as to determine what evidence, if any, he relied upon in making them.

The record in this case reveals that the claimant worked for approximately thirty-five (35) years underground in the coal mining industry, having last been employed on November 23, 1976. In addition to his work underground, the claimant also smoked cigarettes. On October 31, 1979, he filed a petition for workmen's compensation based on a diagnosis of pneumoconiosis, a compensable occupational disease.

A workmen's compensation claimant has the burden of proving his right to compensation and all of the elements necessary to support an award. Smith v. Workmen's Compensation Appeal Board, 63 Pa. Commonwealth Ct. 340, 437 A.2d 1301 (1982). Where the party with the burden of proof prevails before the referee, as here, this Court's review is limited to a determination of whether constitutional rights have been violated, whether an error of law has been committed, or whether a necessary finding of fact was unsupported by substantial evidence. Lehman v. Workmen's Compensation Appeal Board, 64 Pa. Commonwealth Ct. 381, 439 A.2d 1362 (1982).

The necessary finding of fact in this case is that the claimant was disabled by pneumoconiosis. In order to conclude that a disability resulted from an occupational disease, unequivocal medical evidence must be presented which establishes that the claimant's disability resulted from the occupational disease, not

[ 92 Pa. Commw. Page 608]

    simply that the disease was present. Brennan v. Workmen's Compensation Appeal Board (Reading Anthracite Co.), 79 Pa. Commonwealth Ct. 217, 468 A.2d 1193 (1983). Medical testimony is unequivocal when it establishes that the claimant's work experience was a cause of this disability and was not just a possible cause of the claimant's condition. Ryan v. Workmen's Compensation Appeal Board, 82 Pa. Commonwealth Ct. 643, 477 A.2d 16 (1984). The referee found that the claimant suffered from pneumoconiosis; therefore, in keeping ...


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