Petrone v. Moffat Coal Co.

Citation427 Pa. 5,233 A.2d 891
PartiesJoseph P. PETRONE, Appellant, Claimant, v. MOFFAT COAL COMPANY and Commonwealth of Pennsylvania. JUAN
Decision Date26 September 1967
CourtUnited States State Supreme Court of Pennsylvania
Joseph E. Gallagher, Scranton, for appellant

Charles A. Bufalino, Jr., Sp. Asst. Atty. Gen., Harrisburg, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

MUSMANNO, Justice.

When Joseph P. Petrone was thirteen years of age, the economic straits of his family drove him into the anthracite mines of Lackawanna County. After toiling for thirty-three years in the depths of the earth, extracting one of nature's most useful minerals, Petrone found his strength ebbing, his step faltering, and his lungs clogging. He soon learned that he was doomed by the fate which has caught up with countless coal miners. Anthracosilicosis had taken up dread habitation in his chest. He could not work--his days as a coal miner were over. He filed a claim petition for benefits under the Workmen's Compensation Disease Act of June 21, 1939, P.L. 566, as amended, Section 301(e), 77 P.S. § 1401(e). The Workmen's Compensation Referee, to which the petition was assigned, concluded, after taking evidence, that Petrone was totally disabled, even though he was still in the summertime of his life. He was forty-six. The Referee awarded him total compensation. The Commonwealth appealed to the Workmen's Compensation Board and the Board reversed the decision of the Referee, stating that--

'Although the claimant is suffering from anthracosilicosis and associated emphysema, he is capable of doing light work of a general nature.'

The claimant appealed to the Court of Common Pleas and then the Superior Court, both of which affirmed the decision of the Workmen's Compensation Board. Petrone appealed to this Court for an allocatur which was granted.

The question to be decided here is whether a claimant for compensation is entitled to benefits under the hearing of total disability if the only work he can perform is light work of a general nature, when no evidence has been presented that light work, considering the worker's physical disability, his limited education and vocational background, is available.

A Dr. Swartz testified for the Commonwealth that Petrone's physical condition was such that he could no longer work in the mines or compete in the general labor market, but that he could do light work of a general nature. To say that a man can do light work of a general nature is to indulge in language as loose as gravel on a hillside. To a husky longshoreman, lifting pianos might be light work; to a Milquetoast, pushing a wheelbarrow could be heavy work. Apparently Dr. Swartz realized the gelatinousness of his generalization so he probably attempted to give it some specificity by stating that the claimant could work as an elevator or as a power lawn mower operator. With these illustrations he went from the swamp of excessive generalization into the quagmire of misleading specifics. With the ever-continuing substitution of hand-operated elevators by automatic elevators, what assurance can there be that Petrone can ever get a job running an elevator? And how many electric or gasoline grass mowers are there in a mining community? Indeed, the writer of this opinion has seen many mining areas where there was no grass, much less power lawn mowers!

The Superior Court, in reviewing this case, generalized in much the same fashion as Dr. Swartz. It said:

'However, there, as in the instant case, a claimant suffering from occupational disease is able to perform light work of a general nature, as distinguished from work of a specialized nature, continuously and steadily, it is presumed that such work is available and the claimant is not totally disabled within the meaning of the Act.'

This is a strange presumption. How does the fact that a person is capable of performing light work guarantee that light work is available? We said in the case of Philadelphia City Passenger Ry. Co. v. Henrice, 92 Pa. 431, at 434; that

'A presumption should always be based upon a fact, And should be a reasonable and natural deduction from that fact.' (emphasis supplied)

Suppose that the work the claimant is capable of performing is that of shoveling snow and he lives in Florida, or suppose he is capable of picking cotton and he lives in Maine? If the finding 'capacity to perform light work' is to mean anything, there must be some evidence that light work exists. There was no evidence introduced at the hearing to show that Petrone could obtain work as an elevator or power lawn mower operator or, indeed any kind of light work. The record is as bare as the Sahara of trees that employers will hire men with the medical, educational and vocational background of Petrone. So far as the evidence reveals, Petrone is as economically totally disabled as if he had to live constantly in a wheel chair.

Total disability is a specific finding and not a general designation. Total disability refers and can only refer to individuals and not to masses or groups. A college professor with rheumatism in his limbs might still be able to teach, a professional author with tuberculosis might still be able to write books, but a compulsorily retired coal miner who has no training for anything but coal mining is totally disabled when he has no aptitude for remunerative work other than the one which requires muscular exertion.

If Petrone cannot mine coal or perform work which raises his biceps or the muscles in his back, he is incapable of producing income; he is without earning power.

In Woodward v. Pittsburgh Engineering & Construction Co., 293 Pa. 338, 340, 143 A. 21, 22, we said: 'The disability contemplated by the act is the loss, total or partial, of the earning power from the injury.' In Unora v. Glen Alden Coal Co., 377 Pa. 7, 104 A.2d 104, we said that in the interpretation of the Workmen's Compensation Act the word 'disibility' is to be equated with 'loss of earning power.' We explained:

'A physician studying, on an anatomical chart, the malady of his patient in correlation to unaffected organs and members may well conclude that the subject is only partially disabled. That same doctor could, however, come to a different conclusion if he saw the patient in the depths of a coal mine laden with heavy equipment, bent under a low ceiling, coughing from bad ventilation and slipping from insecure footing. It is obvious that a one-legged man is only partially disabled at a desk addressing envelopes but entirely hors de combat in a quarry carrying blocks of stone.

'Thus, the determination of total disability is one which requires a consideration and weighing (in addition to the anatomical facts) of such factors as the claimant's mental outlook, his industrial background, his education, the occupation, if any, he could perform where his particular physical impairment would not be a total bar, and Whether such work exists. Where the injured person can handle only a specially-created job, one light of effort and responsibility but laden with rest and comfort (employment plums that do not often dangle from the tree of everyday economics) the burden is on the defendant-employer to show that such a job is in fact within reach. If proof of that fact is not presented, the claimant then is entitled to a finding of total disability.' (emphasis supplied)

The presumption spoken of by the Superior Court in the case at bar, namely, that if a person is capable of doing light work, light work can be had for the asking, is so unnatural and illogical that one wonders how it ever found a footing in the law. The fact that one is a swimmer does not legally or factually presume that there is available a river or even a swimming pool in the community in which he may swim. The original false step in the Superior Court's reasoning was apparently taken in the case of Consona v. R. E. Coulborn & Company, 104 Pa.Super. 170, 172, 158 A. 300, (1931) where the Court said,

'If he were able uninterruptedly,...

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