Dunn v. Merck & Co.

317 A.2d 657, 12 Pa. Commw. 572, 1974 Pa. Commw. LEXIS 1100
CourtCommonwealth Court of Pennsylvania
DecidedApril 1, 1974
DocketAppeal, No. 953 C.D. 1973
StatusPublished
Cited by8 cases

This text of 317 A.2d 657 (Dunn v. Merck & Co.) 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
Dunn v. Merck & Co., 317 A.2d 657, 12 Pa. Commw. 572, 1974 Pa. Commw. LEXIS 1100 (Pa. Ct. App. 1974).

Opinion

Opinion by

Judge Mencer,

This is an appeal from an order of the Court of Common Pleas of Northumberland County affirming [574]*574the dismissal of the claim petition of Harold Richard Duna (Dunn) by the Workmen’s Compensation Appeal Board (Board).

Dunn had been employed by Merck & Company, Inc. (Merck) as a chemical operator from January 21, 1952 until August 23, 1966. His job consisted of working with many types of chemicals and chemical concentrations. On his last day of work, Dunn was taken ill and was forced to leave work to receive medical attention. He has never returned to work.

On June 21, 1967, Dunn filed a claim petition under The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P. L. 566, No. 284, as amended, 77 P.S. §1201 et seq., alleging that he had become totally disabled by pulmonary fibrosis and emphysema and therefore qualified for compensation under the provisions of Section 108(n) of the Act added by the Act of February 28, 1956, P. L. (1955) 1095, §1, 77 P.S. §1208 (n).

Three hearings were held by a referee, resulting in an award of compensation to Dunn on January 28, 1970. Merck then appealed to the Board which, after receiving briefs and hearing oral argument but without hearing new evidence, reversed the referee. Dunn then appealed to the Court of Common Pleas of Northumberland County. The Court affirmed the Board and this appeal then followed.

Dunn first argues that the Board erred by not making specific findings of fact and conclusions of law. We do not agree.

Although the Board’s opinion does not contain specifically enumerated findings and conclusions, our reading of it satisfies us that it contains findings of fact and conclusions of law of sufficient specificity to enable us to perform our scope of review. The case of Sherred v. Pittsburgh, 7 Pa. Commonwealth Ct. 401, 299 A. 2d 381 (1973), is therefore distinguishable since [575]*575we held there that a remand to the Board is necessary when a case comes to us with no findings of fact or conclusions of law of sufficient specificity to enable this Court to give fair judicial scrutiny.

While Section 418 of the Act, 77 P.S. §1518, requires the Board to make findings and conclusions in writing, it does not mandate that these be specifically enumerated. We hold that the Board’s opinion satisfies Section 418 and is not repugnant to our holding in Sherred, supra.

Dunn’s second argument is that the Board made various errors in reversing the referee and malting its own findings and conclusions. Since all parties to this appeal seem to misunderstand the role of the Board in occupational disease cases, we will endeavor to restate it.

Our holding in Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A. 2d 757 (1973), did not change the Board’s role in occupational disease cases. We held only that Section 423 of The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P. L. 736, 77 P.S. §854, had been changed by recent legislation so that, in workmen’s compensation cases, the ultimate fact-finding responsibility was taken from the Board and given to the referee unless the Board chose to hear new evidence. Section 423 of The Pennsylvania Occupational Disease Act, 77 P.S. §1523, the counterpart to Section 423 of The Pennsylvania Workmen’s Compensation Act was not affected by these changes. Hence, the Board is still the ultimate factfinder and may disregard the findings of fact of the referee in all cases brought under The Pennsylvania Occupational Disease Act.

Dunn’s argument that the due process clause of our Federal Constitution requires the Board to have the same role under both acts is without merit. Although we believe it is more desirable for the Board to have the [576]*576same functions under both acts, this is a matter for the Legislature to decide.

We now examine Dunn’s claims of error, keeping in mind the proper role of the Board and our scope of review.

Our scope of review in occupational disease cases in which the Board has decided against a claimant is limited to a determination as to whether the Board’s findings of fact are consistent with each other and with its conclusions of law and its order and can be sustained without a capricious disregard of competent evidence. Cf. Billet v. Keystone Roofing Manufacturing Company, 6 Pa. Commonwealth Ct. 23, 291 A. 2d 921 (1972).

A review of the Board’s opinion reveals that its findings are consistent with each other and its legal conclusions and order.1 The Board’s opinion analyzes various x-ray reports and finds that, except for a prior, healed tuberculosis lesion, Dunn did not have fibrosis. The Board also examines testimony on whether chemical fumes could cause pulmonary damage and finds that the concentration necessary to cause damage was not established. From these findings the Board concludes that Dunn failed to meet his burden of proof and that his claim petition should therefore be dismissed. We can find nothing inconsistent in the Board’s opinion.

We now examine the findings and conclusions of the Board to see whether they can be sustained without a capricious disregard of competent evidence. In Sherred v. Pittsburgh, supra at 405, 299 A. 2d at 383, quoting with approval from Brown v. Atlantic and Gulf Stevedores, Inc., 2 Pa. Commonwealth Ct. 481, 483, 279 A. 2d 372, 373 (1971), we stated: “ ‘To constitute a ca[577]*577pricious disregard there must he a wilful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching the result.’ ”

In order to establish that he was eligible for compensation under Section 108 (n), Dunn had the burden of proving that he suffered an occupational disease (1) to which he was exposed by reason of his employment and (2) which is peculiar to the industry or occupation and (3) which is not common to the general public.

A careful examination of the record reveals that the Board had before it a conflict of testimony as to whether or not Dunn satisfied the above criteria. The Board resolved this conflict against Dunn, concluding that he did not meet his burden of proof.

Dunn now attempts to show that the Board erred by pointing to various evidence in the record which supports his claim. Unfortunately, his efforts are to no avail, for two reasons: (1) The credibility and weight of the testimony are matters for the factfinder to determine, Rosenau Brothers, Incorporated, v. Workmen’s Compensation Appeal Board, 10 Pa. Commonwealth Ct. 462, 311 A. 2d 160 (1973); and (2) the factfinder is not required to accept the testimony of any witness, and this rale applies even though the testimony is not contradicted. Peron v. Phoenix Park Coal Co., 202 Pa. Superior Ct. 495, 198 A. 2d 370 (1964).

We have examined the record and are convinced that the Board did not capriciously disregard competent evidence in making its findings and conclusions. As we stated in American St. Gobain Corporation v. Workmen’s Compensation Appeal Board, 11 Pa. Commonwealth Ct. 388, 393, 314 A. 2d 40, 42 (1974), “[t]he question before us is not whether the evidence would support a finding in favor of the claimant but whether [578]*578there has been a capricious disregard of competent evidence in the failure to so find.”

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Bluebook (online)
317 A.2d 657, 12 Pa. Commw. 572, 1974 Pa. Commw. LEXIS 1100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-merck-co-pacommwct-1974.