Appeal from the Order of the Workmen's Compensation Appeal Board in the case of George A. Birx, Jr. v. Duquesne Light Company, No. A-85308.
John A. Lee, for petitioner.
William Caroselli, with him, John W. McTiernan, McArdle, Caroselli, Spagnolli & Beachler, for respondent, George A. Birx, Jr.
Judges Doyle and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Doyle.
Duquesne Light Company (Employer) appeals from a decision of the Workmen's Compensation Appeal Board (Board) awarding benefits for total disability to George A. Birx, Jr. (Claimant).
On May 6, 1980, Claimant filed a workmen's compensation claim petition alleging that as a result of long and continuous exposure to deleterious dust, fumes and particulate matter (primarily asbestos), over the course of approximately twenty-five years of employment with Employer, he had become totally disabled on June 4, 1979, with esophageal and laryngeal carcinoma.
A hearing was held before a referee on August 7, 1980, during which Claimant presented three of his former co-employees who testified concerning Claimant's job duties and exposure to the allegedly deleterious substances. The hearing was then continued to allow Claimant an opportunity to obtain the deposition of a medical witness, Dr. Michael Wald, for proof of causation. This deposition was taken on October 14, 1980, and a second hearing was held on December 4, 1981. At this time, Employer submitted several medical exhibits, one of which was objected to by Claimant. The objection was not ruled upon at the time, as both parties expressed a desire to present their positions via letters to the referee. For an undisclosed reason, Claimant did not formally submit the deposition of Dr. Wald at the hearing, but merely requested that he be permitted to submit a bill of costs along with his proposed findings of facts and conclusion of law at a later date.
On January 4, 1982, Claimant sent a letter to Employer, copied to the referee, withdrawing his objection and indicating that his bill of costs and proposed findings and conclusions would be forwarded to the referee within the next thirty days. These documents were mailed to the referee on January 28, 1982. In his
proposed findings and conclusions, Claimant referred extensively to the deposition of Dr. Wald. The deposition itself was also mailed to the referee, but under cover of a separate letter, dated January 29, 1982.
The referee awarded Claimant all of the requested costs, adopted verbatim the Claimant's proposed findings of facts and conclusions of law, and issued a decision in Claimant's favor, dated January 29, 1982.
Employer appealed to the Board on the basis that the referee had relied on evidence, specifically the deposition testimony of Dr. Wald, which had not yet been received by the referee on January 29, 1982, and thus was not of record as of the date of his decision. Employer also appealed the award of costs to Claimant for reports which had been introduced into evidence by Employer.
The Board remanded the case to the referee stating that it appeared that the record had been closed prematurely. A supplemental hearing was conducted on October 6, 1982, at which time Claimant formally offered the deposition of Dr. Wald, along with a report from him dated April 24, 1980, a notice letter sent to Employer on April 30, 1981 and a bill of costs. Employer maintained a continuing objection to the introduction of any new evidence at this hearing. On December 30, 1982, the referee issued a second decision, fully consistent with his prior decision with the exception that a charge for one medical report was deleted from the assessed costs.
Employer again appealed to the Board, renewing his argument that the referee's findings of fact and conclusions of law regarding medical causation were not supported by evidence properly of record because the deposition and medical report of Dr. Wald were not introduced prior to the referee ...