B.P. Oil Corp. v. Workmen's Compensation Appeal Board

613 A.2d 643, 149 Pa. Commw. 549, 1992 Pa. Commw. LEXIS 528
CourtCommonwealth Court of Pennsylvania
DecidedAugust 5, 1992
DocketNos. 1103 and 1175 C.D. 1991
StatusPublished

This text of 613 A.2d 643 (B.P. Oil Corp. v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B.P. Oil Corp. v. Workmen's Compensation Appeal Board, 613 A.2d 643, 149 Pa. Commw. 549, 1992 Pa. Commw. LEXIS 528 (Pa. Ct. App. 1992).

Opinion

LORD, Senior Judge.

B.P. Oil Corporation appeals from a Workmen’s Compensation Appeal Board order that modified a referee’s award of benefits, under Section 301(c)(2) of the Pennsylvania Workmen’s Compensation Act (Act),1 to Joseph F. Maher, claimant. Maher cross-appeals, contesting the effective date of disability.2

This case has been before the Court previously.3 The relevant facts found by the referee that are not in dispute are that the claimant worked as an insulator at the Marcus Hook Refinery from 1940 to September 30, 1978, when he retired, and, in the course of his employment, he was exposed to asbestos hazard. By 1970, only non-asbestos materials were used when new insulation was installed; however, old asbestos-containing materials still had to be removed as part of the normal duties of insulators. By February 1973, the employer had implemented safety measures to protect the workers from asbestos, namely, requiring the wearing of masks and coveralls when working with asbestos.

In late 1972, the plant physician initiated a program of examining each asbestos handler to see if he were suffering any ill effects from exposure to asbestos. Pursuant to this program, a board certified pulmonary specialist engaged by the employer first examined the claimant on January 3, 1973, and diagnosed severe extensive pleural disease due to asbestos [552]*552exposure. The specialist recommended that the claimant continue working because he was not disabled. On or about March 6,1973, the employer gave the claimant an order not to participate in the removal of old insulation and to avoid all contact with asbestos dust; the claimant was told to police his own assignments and call any incorrect assignment to the attention of his supervisor.

The specialist continued to monitor the claimant’s condition every six months from May 2, 1973 through May 9, 1978. On September 17, 1981, the specialist examined the claimant for the last time, and at that point he first diagnosed asbestosis. There had been an increase in the claimant’s disability between May 1978 and September 1981. At that time, the specialist thought that the claimant was disabled from returning to his work as an insulator, although he did not think the claimant was disabled from sedentary work.

In a decision dated August 18, 1984, the referee dismissed Maher’s claim petition, concluding that the last exposure to asbestos which caused Maher’s disability was before January 3, 1973; therefore, he was not entitled to benefits. Maher appealed to the board which affirmed the referee’s decision. Maher then appealed to this Court, which issued an en banc decision that reversed the board’s decision and held that proof of exposure to asbestosis after June 30, 1973 was sufficient to establish his entitlement to benefits. The case was remanded to the board with instructions to remand to the referee for a determination on the date of disability and computation of benefits.

On remand, the referee found Maher’s date of disability was September 17, 1981. The referee awarded benefits based upon rates in effect in 1973, because he concluded that the last day of exposure from which Maher’s disability resulted was the last working day prior to January 3, 1973. Both parties appealed the referee’s decision to the board, which modified the award of benefits to Maher to the maximum allowable rate in 1978, upon its conclusion that the date of Maher’s last exposure was his last day of work. It ordered that benefits become effective on September 17, 1981.

[553]*553Initially, we will address Maher’s appeal, in which he argues that his benefits should commence on October 1, 1978, the date he retired. This question .is easily decided, for Maher’s brief in essence asks us to reexamine the referee’s findings of fact. This is not our function. See Universal Trucking, Inc. v. Workmen’s Compensation Appeal Board (Hassell), 112 Pa.Commonwealth Ct. 428, 535 A.2d 722 (1988). The referee found — and the board affirmed — that Maher did not become disabled until September 17, 1981. This conclusion was supported by the medical testimony of Jerome Rudnitzky, M.D., a board certified specialist in pulmonary medicine, who testified for the employer.4 Indeed, Maher offered no contrary medical evidence that he was physically disabled due to asbestos on October 1, 1978.5

In support of his argument, Maher cites Harbison-Walker v. Workmen’s Compensation Appeal Board, (Varner), 40 Pa.Commonwealth Ct. 556, 397 A.2d 1284 (1979), in which this Court stated:

Since it was undisputed that claimant was receiving wages from Harbison and hence suffered no loss of earning power until February 1, 1976, the referee was justified in finding that claimant was not partially or totally disabled until February 1, 1976. Therefore, he correctly determined claimant’s compensation rate according to the 1976 compensation schedule. See 2 A. Barbieri, Pennsylvania Workmen’s Compensation and Occupational Disease No. § 7.02(1) (1975).

Id. at 559, 397 A.2d at 1285, 1286.

For a compensable disability, a claimant must be both physically disabled and suffer a loss of earning power. In Harbison-Walker, claimant was found to be physically disabled in 1975 but did not become disabled under the act, i.e., did not suffer a loss of earning power, until 1976. Maher [554]*554on the other hand, was not found physically disabled due to asbestos until 1981, but had retired in 1978, which caused him to suffer a loss of earning power. Therefore, the date Maher’s physical disablement and loss of earning power coincided was September 17,1981, the date used by the board. Accordingly, we will affirm the board’s award of benefits.

We turn now to the issues raised by B.P.6 At the outset, B.P. argues that the referee’s conclusion that Maher’s claim petition should be dismissed was the correct result. It is B.P.’s contention that since Maher voluntarily retired, B.P. had no legal burden of proving that work was available to Maher. B.P. relies on Dugan v. Workmen’s Compensation Board of Review (Fuller Company of Catasauqua), 131 Pa.Commonwealth Ct. 218, 569 A.2d 1038 (1990), in which this Court held that, when a claimant suffered a myocardial infarction and subsequently testified he voluntarily retired claimant’s loss of earning power was caused by his voluntary retirement, not the injury, and the employer was relieved of his duty to prove the availability of other employment.

The facts in Dugan, a myocardial infarction injury claim, are not applicable to this occupational disease claim, as was made clear when this Court distinguished Dugan from Wheeling-Pittsburgh Steel Corp. v. Workmen’s Compensation Appeal Board (Charles T. Smith), 70 Pa.Commonwealth Ct. 100, 452 A.2d 611 (1982). In Dugan, 131 Pa.Commonwealth Ct. at 223, 569 A.2d at 1041, we stated:

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Wheeling-Pittsburgh Steel Corp. v. Workmen's Compensation Appeal Board
452 A.2d 611 (Commonwealth Court of Pennsylvania, 1982)
Dugan v. Workmen's Compensation Appeal Board
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613 A.2d 643, 149 Pa. Commw. 549, 1992 Pa. Commw. LEXIS 528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bp-oil-corp-v-workmens-compensation-appeal-board-pacommwct-1992.