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04/30/97 MILAN CIPCIC v. WORKMEN'S COMPENSATION

April 30, 1997

MILAN CIPCIC, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CONSOLIDATION COAL COMPANY), RESPONDENT



Appealed From No. A94-1182. State Agency Workmen's Compensation Appeal Board.

Before: Honorable James Gardner Colins, President Judge, Honorable Jim Flaherty, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY President Judge Colins.

The opinion of the court was delivered by: Colins

OPINION BY PRESIDENT JUDGE COLINS

FILED: April 30, 1997

Milan Cipcic (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) *fn1 reversing a decision of a Workers' Compensation Judge (WCJ) to award Claimant workers' compensation benefits. We affirm.

Claimant filed a claim petition on March 4, 1993 alleging an occupational disease (coal workers' pneumoconiosis). Four years earlier, on January 3, 1989, Claimant had retired after forty years of employment as a coal miner. Claimant's last employer, for a period of twenty-five years, was Consolidation Coal Company (Employer). Following his retirement, Claimant experienced shortness of breath and was examined by Macy Levine, M.D. on February 9, 1993. Dr. Levine diagnosed Claimant as having coal workers' pneumoconiosis caused by Claimant's many years of working in and around coal mines. Dr. Levine further opined that Claimant is totally and permanently disabled from this condition. Claimant was also examined by Employer's physician, Gregory Fino, M.D. Dr. Fino also diagnosed Claimant as having coal workers' pneumoconiosis, but opined that Claimant was able to perform his last job with Employer that required sustained heavy labor. Claimant was sixty-five years old when he was examined by Drs. Levine and Fino.

The matter was heard before a WCJ who found that Claimant was totally and permanently disabled because of coal workers' pneumoconiosis, based upon the testimony of Dr. Levine who was found to be more credible than Dr. Fino. Accordingly, the WCJ awarded Claimant benefits commencing February 9, 1993, the date of Dr. Levine's examination. Employer appealed.

The Board reversed, finding as a matter of law that Claimant did not prove an entitlement to benefits under the Act because his lack of earning capacity resulted from his retirement rather than an occupational disease. In so finding, the Board noted the following admissions by Claimant in the record:

In the present case Claimant testified that when he retired he made no indication to [Employer] that he had any shortness of breath. ([N.T.], 5/3/93, pg. 9). Claimant's only medical treatment after he retired was with his family doctor for a cold or flu. ([Id. ]), pg. 10). Claimant saw the doctor that testified for this claim [Dr. Levine] only once and not for treatment.

Board's Opinion, April 4, 1995, p. 2. *fn2 The Board further noted that this case was controlled by Republic Steel Corp. v. Workmen's Compensation Appeal Board (Petrisek), 537 Pa. 32, 640 A.2d 1266 (1994), which, according to the Board,

stands for the proposition that if a Claimant elects to retire after a long period of service and no indication had been given at the time of retirement that Claimant was unable to work because of physical problems[,] an after[-]filed claim for an alleged occupational disease disability is not appropriate.

Board's Opinion, April 4, 1995, p. 2.

The Board granted Claimant's request for reconsideration, but then reaffirmed its previous decision. This appeal followed, wherein Claimant raises several issues that can be summarized as (1) the Board erred by considering an issue not raised by Employer before the WCJ (i.e., Claimant's voluntary retirement as a factor precluding a finding of disability); (2) the Board erred by retroactively applying Republic Steel (decided in April 22, 1994) to Claimant's case, which was heard in 1993 and early 1994, when the issue of retirement had not been preserved by Employer; and (3) the Board erred by usurping the WCJ's fact-finding role.

This Court's scope of review is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated. Columbo v. Workmen's Compensation Appeal Board (Hofmann Industries, Inc.), 162 Pa. Commw. 307, 638 A.2d 477 (Pa. Commw. 1994). This is also the scope of review that is to be applied by the Board to the WCJ's decision. Bechtel Power Corp. v. Workmen's Compensation Appeal Board ...


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