Lowery v. Pittsburgh Coal Co.

Opinion by Weight, J., This case arises under The Pennsylvania Occupational Disease Act of Jane 21, 1939, P. L. 566, 77 P.S. L201 et seq. On May 7, 1964, Joel S. Lowery filed a claim petition alleging that he became totally disabled from silicosis on June 4, 1955. Answers were filed by the employer and the Commonwealth.1 On May 25, 1964, before any hearing had taken place, Lowery died. His death was called to the Board’s attention by letter, but the widow did not file a separate fatal claim petition. See Moore v. Dodge Steel Co., 206 Pa. Superior [77] Ct. 242, 213 A. 2d 130. After taking testimony at a hearing on August 19, 1964, the Referee made an order, June 9, 1965, dismissing the claim petition. On April 21, 1966, the Workmen’s Compensation Board affirmed the Referee’s order of dismissal. On October 21, 1966, the Court of Common Pleas of Washington County reversed the Board’s decision, substituted its own findings of fact, concluded that compensation should be paid, and remanded the case to the Board for the purpose of fixing the amount due. Both the employer and the Commonwealth have appealed. It has been consistently held that, where the decision of the Board is against the party having the burden of proof, the Court of Common Pleas has no power to reverse findings of fact by the Board unless there has been a capricious disregard of competent evidence. We recently restated the applicable legal principles in Brasacchio v. Pa. Highway Dept., 208 Pa. Superior Ct. 212, 222 A. 2d 418, as follows (citations omitted) : “In an occupational disease compensation case it is claimant’s burden to prove all the elements necessary to support an award. . . The credibility and weight of the testimony are matters for the Board to determine. . . The Board is not required to accept the testimony of any witness, and this rule applies even though the testimony is not contradicted. . . It is for the Board as the final fact-finding body to determine from all the evidence whether claimant has sustained the burden resting upon him, and its finding that he has not is a pure finding of fact. . . The appellate court must view the evidence in the light most favorable to the party having the Board’s decision. . . Where the compensation authorities refuse to find facts in favor of the party having the burden of proof, the question on review is not whether the evidence would sustain such a finding, but whether there was a capricious disregard of competent evidence in the refusal so to find”. [78] The basis of the Board’s decision in the case at bar was its refusal to find that claimant became totally disabled from silicosis within four years from the date of his last employment as required by Section 301(c) of the Act, 77 P.S. 1401(c). There is no question that the date of claimant’s last employment was June 4, 1955. His attending physician, Dr. Sydney Safran, testified that claimant sustained a coronary heart attack at that time, and was treated for coronary insufficiency, myocardial infarction, and angina pectoris. On May 9, 1961, claimant was admitted to the Canonsburg General Hospital, where his condition was diagnosed as myocardial infarction and angina pectoris. On July 18, 1963, claimant was admitted to Flick State Hospital, and was thereafter treated by Dr. Richard P. Jahnig. It was Dr. Jahnig’s opinion that claimant had silicosis. He testified that the silicosis was a condition of long standing “possibly 8 to 10 years prior. . . It dates back to 1955 in our medical history”. However, he conceded that he had not known of claimant’s admission to the Canonsburg General Hospital. Dr. Safran stated: “There is a very good possibility that a good many of his symptoms could have been caused by this lung condition that caused his death. . . I would have to state that his disability was caused by emphysema and silicosis which we did not know existed”. Dr. Safran had previously testified as follows: “During the course of my taking care of him, I believe he was seen by several heart specialists and also seen at the clinic, the miner’s clinic. It was through the clinic that he was ultimately referred to a heart specialist in Washington, Pennsylvania, who saw him quite frequently during his later years”. The pivotal issue in the instant case is the date of claimant’s disability from silicosis. Having before it the evidence relating to claimant’s heart condition, the Board referred to Dr. Jahnig’s estimate as follows: [79] “Although competent, we do not accept this evidence as credible”. With regard to Dr. Safran the Board stated: “The tenor of his testimony presents equivocation as to claimant’s condition and the basis for same. This does not meet the standard of unequivocal medical testimony required in these cases”. The credibility and weight of the testimony were matters for the Board to determine. Our review of the record leads us to agree with the Board that the opinions of Dr. Jahnig and Dr. Safran were not only indefinite and equivocal, but also were based on speculation and conjecture. We find no capricious disregard of competent evidence. It is our view that the Board was fully warranted in finding that claimant had not sustained the required burden of proof. The decision of the Board in the case at bar is supported by our recent decisions in Obzut v. Phila. & Reading C. & I. Co., 199 Pa. Superior Ct. 289, 184 A. 2d 381, and Peron v. Phoenix Park Coal Co., 202 Pa. Superior Ct. 495, 198 A. 2d 370. In the Obmt case the Board refused to make an award, and the Court of Common Pleas dismissed claimant’s appeal. In affirming, we rejected a contention that the Board was guilty of a capricious disregard of medical testimony as to the date of claimant’s disability. In the Perón case, rejecting a similar contention, we expressly stated that it was within the province of the Board to decline to make an award if it found the medical testimony unsatisfactory. The Obmt and Perón cases control the instant appeals, and require reversal of the order below. The order of the court below is reversed, and the decision of the Board is reinstated. Footnotes [1] Each answer pleads, inter alia, that the claim was barred by the statute of limitations contained in Section 315 of the Act, 77 P.S. 1415. The Referee found this contention persuasive. However, the Board did not decide the case on that basis. Neither do we. See Ciabattoni v. Birdsboro Steel Foundry and Machine Co., 386 Pa. 179, 125 A. 2d 365, reversing 179 Pa. Superior Ct. 538, 118 A. 2d 229. It is interesting to note that, between the dates of the Superior and Supreme Court decisions in the Ciahattoni case, the legislature had extended the limitation period from one year to sixteen months. It is possible to justify the ultimate decision in the Ciahattoni case on the ground that the claim petition had been filed within the limitation period as enlarged by the intervening amendment.