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BARBARA ROTH v. WORKMEN'S COMPENSATION APPEAL BOARD (ARMSTRONG WORLD INDUSTRIES) (07/31/89)

decided: July 31, 1989.

BARBARA ROTH, ADMINISTRATRIX OF THE ESTATE OF JOHN D. ROTH, PETITIONER,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ARMSTRONG WORLD INDUSTRIES), RESPONDENTS



PETITION FOR REVIEW (WORKMEN'S COMPENSATION).

COUNSEL

Harvey S. Miller, Windolph, Burkholder, Stainton & Gray, Lancaster, for petitioner.

W. Jeffrey Sidebottom, Barley, Snyder, Cooper & Barber, Lancaster, for respondents.

Doyle and McGinley, JJ., and Barbieri, Senior Judge.

Author: Doyle

[ 128 Pa. Commw. Page 2]

This is an appeal by Barbara Roth, Administratrix of the Estate of John D. Roth (Petitioner), from an order of the Workmen's Compensation Appeal Board which affirmed a referee's determination to deny Claimant's petitions for compensation arising out of a May 29, 1985 incident.*fn1

[ 128 Pa. Commw. Page 3]

The referee made the following pertinent findings. In August of 1985 John D. Roth (Decedent) filed two reinstatement petitions alleging total disability as of June 21, 1985 as a result of work-related injuries to either his knees or his heart.*fn2 The referee found that on May 29, 1985 the freight elevator which Decedent was operating became overloaded and fairly quickly descended two floor levels. This incident necessitated a hospital stay of a few days. Decedent alleged that this incident aggravated a pre-existing problem with respect to his knees and alternatively alleged that the incident aggravated a pre-existing heart condition. Claimant was also readmitted to the emergency room twice in June 1985 for heart problems. It is only the claim pertaining to the heart condition that we are asked to review.

The referee found, based upon the evidence, that Decedent had a long standing heart problem ranging as far back as 1982. In 1984 he had to undergo bypass surgery. Although he was considered a candidate for a heart transplant, because of another medical problem it was determined he would be an inappropriate candidate. The referee specifically found that all of Decedent's heart problems were non work-related. Beginning in early May, prior to the elevator incident, Decedent began having an increase in symptoms of chest pain which necessitated several visits to the emergency room at the hospital. The referee determined that Decedent's long standing heart problem coupled with the fact that he was considered by doctors as needing a new heart months before the elevator incident, led to a conclusion that Decedent's heart condition was not work-related. Accordingly, benefits were denied. On appeal the Board affirmed the referee's decision and appeal to this Court followed.

[ 128 Pa. Commw. Page 4]

Before this Court Petitioner raises various arguments which we shall consider seriatim, keeping in mind that our scope of review is limited to determining whether the necessary findings of fact are supported by substantial evidence and whether there has been a constitutional violation or an error of law. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.

Petitioner first argues that the referee committed error because he failed to set forth an explanation as to why the testimony of Decedent's doctor was rejected in favor of the testimony of a non-treating doctor. As support for the proposition that the reason why probative evidence has been rejected must be set forth in the adjudication, Petitioner cites to a third circuit case*fn3 decided under federal administrative agency law. Unfortunately for Petitioner her case is controlled by the provisions of Section 507 of Pennsylvania's Administrative Agency Law, 2 Pa.C.S. § 507, rather than federal law. And, it is clear that with respect to Pennsylvania's administrative agency proceedings the agency is not required to set forth findings specifically rejecting each and every allegation of a party. Campbell v. Pennsylvania State Police, 47 Pa. Commonwealth Ct. 574, 408 A.2d 591 (1979); Selan v. Unemployment Compensation Board of Review, 52 Pa. Commonwealth Ct. 7, 415 A.2d 139 (1980) affirmed per curiam, 495 Pa. 338, 433 A.2d 1337 (1981). Thus, we find that although the referee did not explain specifically why she rejected certain testimony, her failure to do so was not fatal to the adjudication.

Next, Petitioner maintains that the testimony of Employer's doctor is internally inconsistent. The basis for Petitioner's contention is that while Decedent's doctor testified as to his belief that Decedent was able to return to gainful employment with restrictions, Employer's doctor testified that Decedent was not ...


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