Joel Persky, Henderson & Goldberg, P.C., Pittsburgh, for petitioner.
Martha R. Conley, Pittsburgh, for respondent, USX Corp.
Barry and McGinley, JJ., and Narick, Senior Judge.
[ 130 Pa. Commw. Page 209]
This is an appeal by James D. Davis (Claimant) from a determination of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision to suspend benefits.
On April 29, 1985, Claimant filed an occupational disease claim under Section 27.1(l) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 27.1(l), asserting that he is disabled as a result of exposure to asbestos and asbestos dust in the course of his employment. Claimant was employed by U.S.X. Corporation (Employer) from 1952 until May 25, 1984, when he was laid-off. Claimant's exposure to asbestos and asbestos dust occurred from June 30, 1973, to May 25, 1984, when he was a steel pourer.
In support of his claim petition Claimant presented the testimony of Doctor Michael E. Wald (Dr. Wald). Dr. Wald opined on the basis of a pulmonary function study and a chest x-ray taken on March 25, 1985, that Claimant suffered from pneumoconiosis. (Deposition of Michael E. Wald, M.D., August 12, 1985, (Deposition of Wald) at pp. 7-9.) Dr. Wald also opined that asbestosis and silicosis were present in the Claimant's lower lung zone. (Deposition of Wald at 9.) However, Dr. Wald also stated that the pneumoconiosis process "has not affected respiratory function to so severe a degree that he is physically unable to perform his job." (Deposition of Wald at 11.) Dr. Wald also opined that Claimant should not return to work because exposure to dust would create further fibrosis and cause Claimant's disease to progress.*fn1 (Deposition of Wald at 11.)
[ 130 Pa. Commw. Page 210]
The referee chose to accept the testimony of Dr. Wald and found that Claimant suffered from asbestosis.*fn2 The referee specifically found:
After a careful review of all the records and the testimony, your Referee finds as a fact and chooses to believe the deposition of Dr. Wald inter alia that the Claimant as of May 3, 1985 does have the disease process of asbestosis but is not disabled from said asbestosis even though Claimant should avoid working in dust areas.
Referee's Findings of Fact No. 10, June 6, 1987, at 2. The referee suspended benefits and the Board affirmed concluding that the referee's findings were supported by substantial evidence and that there was no disability.
Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed or findings were unsupported by substantial evidence. Hammer v. Workmen's Compensation Appeal Board (Gannondale), 105 Pa. Commonwealth Ct. 356, 524 A.2d 550 (1987).
On appeal Claimant argues that the unequivocal medical testimony establishes that he suffers from an occupational disease which precludes him from returning to his former job. Specifically, Claimant asserts that he has suffered a loss of earning power because his occupational disease would progress if ...