C & K Coal Co. v. Workmen's Compensation Appeal Board

569 A.2d 384, 131 Pa. Commw. 1, 1990 Pa. Commw. LEXIS 59
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 25, 1990
StatusPublished
Cited by1 cases

This text of 569 A.2d 384 (C & K Coal Co. 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
C & K Coal Co. v. Workmen's Compensation Appeal Board, 569 A.2d 384, 131 Pa. Commw. 1, 1990 Pa. Commw. LEXIS 59 (Pa. Ct. App. 1990).

Opinion

BARBIERI, Senior Judge.

C & K Coal Company (Employer) petitions for review of the order of the Workmen’s Compensation Appeal Board [3]*3(Board) which affirmed the referee’s decision awarding Frank G. Crissman (Claimant) temporary total disability compensation benefits for coal worker’s pneumoconiosis pursuant to Section 108(q) of The Pennsylvania Workmen’s Compensation Act1 (Act). The sole issue, as stated by Employer, is whether a physician who finds that a claimant is totally disabled from two causes entitles the referee to infer that the claimant is partially disabled from coal worker’s pneumoconiosis. We affirm.

After hearing, the referee made the following relevant findings of fact:

4. That the claimant was employed in the bituminous mining industry by various firms from 1948 to 1984, incl. Claimant was exposed to coal dust continuously during that period.
5. That claimant was last employed in the coal mining industry in Penna. by the defendant from 1974 to his retirement on December 28, 1984____
6. That the claimant testified that his 36 years in the bituminous coal industry were spent working on strip mining operations as a truck driver, operator and mechanic, jobs which exposed him to coal dust on a continuous basis as he climbed on booms, equipment and trucks while repairing them.
8. That the claimant testified he has been short of breath since the early 1970’s and cannot perform moderate levels of exercise without discomfort and difficulty in breathing. Claimant admitted to smoking 1 to 2 packs of cigarettes per day for the last 42 years.
9. That claimant presented, by deposition, the testimony of M.I. Levine, M.D., a Board Certified internist, who examined claimant on March 29, 1985 and April 19, 1985. Dr. Levine testified that it was his medical opinion that the claimant suffered coal worker’s pneumoconioisis [sic] [4]*4which rendered him totally disabled and incapable of performing his prior duties. This diagnosis was based in part upon pulmonary function test results showing below normal values indicative of mild, obstructive lung disease. Furthermore, chest x-rays taken and read by Dr. Levine (who admitted to being neither an A or B reader) were indicative of pneumoconiosis, 1/1, type p, in six zones. Also, an exercise test indicated claimant’s respiration rate increased to abnormal levels while exercising. Dr. Levine did admit that claimant’s smoking did contribute to his condition to an unascertainable amount.
11. That your Referee finds the testimony presented by the claimant, specifically that of Dr. Levine, to be more credible in determining that the claimant suffers coal worker’s pneumoconiosis.
12. That your Referee finds that the evidence presented establishes as fact that the claimant’s pneumoconiosis has rendered him incapable of performing his prior job with the defendant, and further, claimant’s pneumoconiosis has caused a mild airway obstruction which partially disabled the claimant.
13. That your Referee finds that the defendant has not made available to the claimant any light duty type work which would be within his physical capabilities.

Findings of Fact Nos. 4-6, 8-9, 11-13. Based thereon, the referee concluded, inter alia:

2. That the claimant has met his burden of.proof in showing he incurred an occupational disease, pneumoconiosis, while in the defendant’s employ.
3. That the claimant has met his burden of proof in showing that said occupational disease has rendered him partially disabled and that defendant did not make any other work available to him, thus making claimant eligible for temporary total disability compensation.

Conclusion of Law Nos. 2-3.

[5]*5On review2, Employer first contends that the referee improperly made medical determinations unsupported by testimony of record. In support, Employer points out that Dr. Levine’s testimony fails to establish that Claimant could not perform his former employment solely as a result of his coal worker’s pneumoconiosis and that the referee, although accepting as credible Dr. Levine’s testimony in establishing that Claimant suffered coal worker’s pneumoconiosis, made no specific finding as to credibility on the issue of disability.

In response to Employer’s first point of contention, it is not now, nor has it ever been, necessary for claimants who seek compensation for disabilities resulting from work-related occupational diseases to establish that they cannot perform their former employment solely as a result of their occupational disease. “All that is necessary is that the occupational disease be a substantial contributing factor in disabling the [Claimant] from his coal mining employment.” Yanish v. Workmen’s Compensation Appeal Board (Bethlehem Mines Corp.), 96 Pa.Commonwealth Ct. 545, 547-48, 507 A.2d 1302, 1303 (1986).3

Moreover, although the referee did not make a specific finding as to credibility on the issue of disability, it is clear from a review of Findings of Fact Nos. 9 and 12 that [6]*6the referee is relying in part upon Dr. Levine’s testimony with respect to the issue of disability. Finding of Fact No. 9 states, inter alia, that “Dr. Levine testified that it was his medical opinion that the claimant suffered coal worker’s pneumoconiosis [sic] which rendered him totally disabled and incapable of performing his prior duties” and that “[t]his diagnosis was based in part upon pulmonary function test results showing below normal values indicative of mild, obstructive lung disease.” In Finding of Fact No. 12, the referee found that “the evidence presented establishes as fact that the claimant’s pneumoconiosis has rendered him incapable of performing his prior job with the defendant, and further, claimant’s pneumoconiosis has caused a mild airway obstruction which partially disabled4 the claimant.” (Footnote added.) Although Dr. Levine testified that Claimant suffered pneumoconiosis which rendered him totally disabled, the referee was not precluded from finding partial disability since, as ultimate factfinder, she was free to accept all, some or none of Dr. Levine’s testimony. Hulse v. Workmen’s Compensation Appeal Board (Louis Fiegleman & Co.), 71 Pa.Commonwealth Ct. 28, 453 A.2d 1081 (1983).

Accordingly, we do not find that the referee’s failure to make a specific finding as to credibility on the issue of disability or her finding of partial disability requires us to remand or take any other remedial action. In any event, Employer has not requested any remedial action other than that we reverse the Board’s order.

Employer’s final contention is that Dr. Levine’s testimony is equivocal5 and thus not competent evidence upon which to support a finding of partial disability. Employer [7]*7relies upon our decision in Bell v. Workmen’s Compensation Appeal Board (Gateway Coal Co.), 118 Pa.Commonwealth Ct.

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569 A.2d 384, 131 Pa. Commw. 1, 1990 Pa. Commw. LEXIS 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/c-k-coal-co-v-workmens-compensation-appeal-board-pacommwct-1990.