Lowery v. Pittsburgh Coal Co.

• Decision Date: 11 June 1970
• Citation: 268 A.2d 212,216 Pa.Super. 362
• Parties: Joel S. LOWERY v. PITTSBURGH COAL COMPANY and Commonwealth of Pennsylvania, Appellants.
• Court: Pennsylvania Superior Court

Page 212

268 A.2d 212

216 Pa.Super. 362

Joel S. LOWERY v. PITTSBURGH COAL COMPANY and Commonwealth of Pennsylvania, Appellants.

Superior Court of Pennsylvania.

June 11, 1970.

Application of Allocatur Denied Dec. 28, 1970.

Richard C. Witt, Spec. Atty. Gen., Clyde M. Hughes, Jr., Asst. Atty. Gen., Harrisburg, for appellants.

Stephen I. Richman Greenlee, Richman, Derrico & Posa, Washington, Anthony J. Polito, Rose, Schmidt & Dixon, Pittsburgh, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING and CERCONE, JJ.

WRIGHT, President Judge.

This case is before us for the second time. It arises as the result of a claim petition under The Pennsylvania Occupational Disease Act ¹ filed by Joel S. Lowery on May 7, 1964, alleging that he became totally disabled from silicosis on June 4, 1955. By order dated June 9, 1965, the Referee dismissed 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. On June 16, 1967, this court reversed the court below and reinstated the decision of the Board. See Lowery v. Pittsburgh Coal Co., 210 Pa.Super. 75, 231 A.2d 899. On November 28, 1967, the Supreme Court reversed this court and remanded the record to the Workmen's Compensation Board 'for further proceedings not inconsistent with the views expressed herein'. See Lowery v. Pittsburgh Coal Co., 427 Pa. 576, 235 A.2d 805. On October 24, 1968, the Board reaffirmed its determination of April 21, 1966. By order dated July 18, 1969, the court below again reversed the Board. The Commonwealth has appealed. The remanding the case to the Board the Supreme Court made the following statement (italics supplied):

'The majority of the Superior Court has undoubtedly correctly stated the law with respect to the review of decisions of the Board. Certainly it is the claimant's burden to prove all of the elements necessary to support an award. There is no doubt that the credibility and weight of the testimony are matters for the Board to determine. Nor is the Board required to accept the testimony of any witness, even though the testimony is uncontradicted. No citations of authority are required to support the proposition that the Board, as the final fact-finding body, must determine whether the claimant has sustained his burden, and that the question on review is not whether the evidence would sustain the Board's finding, but whether there was a capricious disregard of competent evidence. * * *

'We are in agreement with the dissenting opinion in the Superior Court that the Board has furnished an insufficient basis for an adequate review of its decision. * * * We conclude that the case must be remanded to the Board so that it may more precisely explain its reasons for rejecting the claim and so that effective judicial review of the Board's decision may be had.'

Section 301(c) of the Act, 77 P.S. 1401(c), provides that, to be compensable, Lowery's disability must have occurred within four years after the date of his last employment. It is undisputed that the date of Lowery's last employment was June 4, 1955. The basis of the Board's decision in the case at bar, both originally and on remand, was its refusal to find that Lowery became totally disabled from silicosis within four years after June 4, 1955. The evidence on that question, consisting of the testimony of Dr. Richard P. Jahnig and Dr. Sydney Safran, is summarized in the opinion of the Supreme Court as follows:

'The physician (Jahnig) who made the diagnosis of silicosis in 1963 testified that the condition was one of long standing, and that in his opinion, the condition had existed in 1955 and 1956. The physician (Safran) who had treated the decedent subsequent to his 1955 heart attack testified that he did not diagnose silicosis at that time. He explained that at that time he had no facilities to make such a diagnosis. He further testified that in the light of what he had learned subsequent to that time, it was now his opinion that the decedent's disability for at least the period from one year after his 1955 heart attack until his death was caused by silicosis'.

In its first decision the Board found this medical testimony to be competent but not credible. As we understand the Supreme Court opinion, the case was remanded because the Board offered no explanation for such a finding, and because the Board might have applied a rule 'which would exclude from consideration the testimony of an expert medical witness as to the date of the commencement of the disability where that date is prior to the doctor's first examination of the claimant.' The difficulty experienced by the Supreme Court in reviewing the Board's first decision was adequately analyzed and answered in the second decision of the Board as follows:

'It is the Board's understanding of the law that competency differs from credibility. The former is a question which arises before considering the evidence given by the witness; the latter concerns the degree of credit to be given to his story. The former denotes the...