Unora v. Glen Alden Coal Co.
| Decision Date | 25 March 1954 |
| Citation | 104 A.2d 104,377 Pa. 7 |
| Parties | UNORA et al. v. GLEN ALDEN COAL CO. et al. |
| Court | Pennsylvania Supreme Court |
Proceedings on claims to recover compensation for alleged total disability from anthraco-silicosis. The Court of Common Pleas of Luzerne County, at No. 130, October Term, 1951, J. Harold Flannery, J., reversed decisions of Workmen's Compensation Board denying compensation, and remanded cases for further action, and defendants appealed. The Superior Court at Nos. 26 and 30, 27 and 31, and 28 and 32, February Term, 1952, William E. Hirt, J., 171 Pa.Super. 29, 90 A.2d 625, reversed the Court of Common Pleas and reinstated order of the Workmen's Compensation Board, and the claimants were granted an allocatur. The Supreme Court, Nos. 312 and 313, January Term, 1952, and Nos. 259, 260, 261, and 262 January Term, 1953, Musmanno, J., held that Medical Board, to which had been referred the question of extent of disability of compensation claimants from anthraco-silicosis, did not comply with its duty of giving claimant a hearing, when it proceeded to reverse the findings of the referee of total disability, without the benefit of evidence and counsel from claimants and their attorneys and without expressing any opinion on the numerous mechanical, nervous and toxic factors entering into the determination of physical disability in a silicosis case.
Order of Superior Court reversed and cases remanded to Workmen's Compensation Board, with direction.
David L. Ullman, Philadelphia, Thomas L. Kennedy, Jr. Hazleton, for appellants.
J. H. Oliver, Franklin B. Gelder, Scranton, Gilbert S. McClintock, William J. Davis, Wilkes-Barre, for Glen Alden Coal Co.
C. A. Whitehouse, Asst. Counsel; Ralph H. Behney, Harrisburg, Frank F. Truscott, Atty. Gen., for the Commonwealth.
Before HORACE STERN, C. J., and ALLEN M. STEARNE, JONES, BELL. CHIDSEY and MUSMANNO, JJ.
The claimants for workmen's compensation in the three cases involved in this appeal from the Superior Court are coal miners afflicted with anthraco-silicosis, a malady listed in the Pennsylvania Occupational Disease Act [1] as compensable provided the disease totally disables the worker.
The Referees hearing the cases (individually) of the claimants Casper Unora, John Kalena and Frank Drozd found, after taking the testimony of expert impartial physicians appointed by the Workmen's Compensation Board, that the claimants were totally disabled. The Glen Alden Coal Company and the Commonwealth of Pennsylvania, as defendants, appealed to the Workmen's Compensation Board which, after affirming the award to Unora, referred that case to the Medical Board appointed under Section 402 of the Act of June 21, 1939. It also referred, before passing on the appeal, the two other cases (Kalena and Drozd) to the same Medical Board.
This Board, made up of three physicians, reviewed the recorded medical testimony and declared that the claimants were only ‘ partially disabled.’ The Workmen's Compensation Board, considering the cases now for the second time, announced that it was bound by the findings of the Medical Board, and, therefore, handed down a new decision denying compensation to the claimants on the ground that they were not totally disabled.
The cases were appealed to the Court of Common Pleas of Luzerne County which reversed the decisions of the Workmen's Compensation Board and sent the cases back for further action. The defendants appealed to the Superior Court, which, in its turn, reversed the Court of Common Pleas of Luzerne County, 171 Pa.Super. 29, 90 A.2d 625.The claimants then asked for an allocatur from the Supreme Court. The allocatur was granted and the claimants entered this Court on a further extension of the legal pilgrimage they began some 6 and one-half years ago. The zigzagging journey, however, is still not ended because, in view of the decision herein to be announced, the case must now go back again to the Workmen's Compensation Board.
Section 420(a) of the Pennsylvania Occupational Disease Act provides[2] that when the Workmen's Compensation Board is required to review the Referee's findings on medical questions, the Board shall refer the case to the Medical Board ‘ for the determination of the medical facts.’ Paragraph (d) of Sec. 402 specifies that ‘ The medical board shall have the power and its duty shall be to hear and determine controverted medical issues in cases arising under this Act in accordance with the provisions of section 420.’ (Emphasis supplied.)
Learned counsel for the claimants have filed an able and exhaustive brief on the questions presented on appeal, the most vital one being: Did the Medical Board meet its procedural obligations when it disposed of the medical issue without taking testimony, without hearing argument, without asking for or receiving any additional evidence, or calling for briefs? We agree that counsel's position is well taken that the Medical Board did not fulfill its duty under the Section of the Act referred to. While the Medical Board was not required to follow any rigid formality, nor even, of its own volition, to seek additional evidence, it cannot be said that it met the wording of the Act when it failed to hear the medical issue involved. In law, where a controversy is involved, a hearing intends a judgment bench attended by judges or officials sitting in a judicial capacity, prepared to listen to both sides of the dispute and to consider deeply, reflect broadly, and decide impartially. Studying papers is not a hearing; passing on a report moving across one's desk is not a hearing. The very genius of American jurisprudence shines in the opportunity it affords every litigant to present his case openly, publicly and untrammeledly. This concept was well stated by the Supreme Court of Montana in the case of Grant v. Michaels, 94 Mont. 452, 23 P.2d 266, 270:
‘ The power ‘ to ‘ hear and determine’ is an essential ingredient of jurisdiction, and the quoted words refer to a judicial investigation and settlement of an issue of fact, which implies the weighing of testimony offered on both sides, from a consideration of which the relief sought by the moving party is either granted or denied''. (Emphasis supplied.)
The failure of the Medical Board to hear the claimants or their counsel is not merely an academic error; it is one of substance. A hearing is not granted to a litigant simply to provide him with a forum for rhetorical expression. The right to be heard constitutes not only the right to talk; it includes the right on the part of the litigant to listen to what the tribunal has to say and to offer advice and counsel. The right to be heard encompasses the right also to give ear to one's adversary and to object, if necessary.
Had counsel for the claimants and for the defendants appeared before the Medical Board it would have become evident during the argument or discussion that the Board intended to proceed, as it in fact did, on the false premise that total disability under the Act is strictly and exclusively a medical, that is to say, a physiological fact. Total disability, however, in the nomenclature of workmen's compensation proceedings imports economic as well as physical findings. Professor Arthur Larson, presently dean of the University of Pittsburgh Law School, well stated in his book on Workmen's Compensation Law (Vol. 2, Sec. 57, 10, pp. 2, 3) that:
‘ * * * the disability concept is a blend of two ingredients, * * * the first ingredient is disability in the medical or physical sense, as evidenced by obvious loss of members or by medical testimony that the claimant simply cannot make the necessary muscular movements and exertions; the second ingredient is de facto inability to earn wages, as evidenced by proof that claimant has not in fact earned anything * * *.
‘ The proper balancing of the medical and the wage-loss factors, is, then, the essence of the ‘ disability’ problem in workmen's compensation.'
In the interpretation of the Workmen's Compensation Act, 77 P.S. § 1 et seq., the word ‘ disability’ is to be regarded as synonymous with ‘ loss of earning power’ . Chief Justice Kephart expressed this proposition with praiseworthy accuracy and succinctness in Woodward v. Pittsburgh Engineering and Construction Co., 293 Pa. 338, 340, 143 A. 21, 22;
‘ The disability contemplated by the act is the loss, total or partial, of the earning power from the injury.'
A physician studying, on an anatomical chart, the malady of his patient in corelation 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...
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