Konitsky v. Workmen's Compensation Appeal Board

656 A.2d 604, 1995 Pa. Commw. LEXIS 141
CourtCommonwealth Court of Pennsylvania
DecidedMarch 23, 1995
StatusPublished
Cited by1 cases

This text of 656 A.2d 604 (Konitsky 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
Konitsky v. Workmen's Compensation Appeal Board, 656 A.2d 604, 1995 Pa. Commw. LEXIS 141 (Pa. Ct. App. 1995).

Opinion

PELLEGRINI, Judge.

Harry Konitsky (Claimant) appeals a decision of the Workmen’s Compensation Appeal [605]*605Board (Board) reversing the Referee’s decision granting Claimant benefits.

On October 2, 1987, Claimant retired as a mechanic with Bethenergy Mines, Inc. (Employer). He had worked for Employer as a mine worker for approximately twenty years and then as a mechanic for the last twelve to thirteen years. Claimant filed a Workmen’s Compensation Occupational Disease (WCOD) petition on February 16, 1988, alleging total disability, or in the alternative, partial disability resulting from coal worker’s pneumo-coniosis. On March 8, 1989, the Referee dismissed this petition, stating that:

10. I find as a fact that the Claimant is neither totally nor partially disabled because of coal worker’s pneumoconiosis or because of any other occupationally related lung disease.
11. The Claimant has chronic obstructive pulmonary disease, the primary cause of which is cigarette smoking. The Claimant’s occupational exposure to coal dust is not a significant cause of this problem.

(R.R. 83a). Claimant did not appeal that decision. Claimant then filed the present WCOD petition on October 15, 1992, again contending that he was suffering pneumoco-niosis resulting from his exposure to coal dust and that he could not return to any employment in which he would again be exposed to coal dust.

Before the Referee, Claimant testified that he retired from his employment on October 2, 1987, because he felt that he could no longer work at the coal mines. Claimant explained that, at that time, he had no energy and experienced frequent shortness of breath. Furthermore, Claimant stated that, whenever he did anything strenuous, he would cough and have pains in his chest. At the urging of his treating physician, Claimant testified, he decided that he could no longer work as a mechanic for Employer.

With respect to the conditions to which he was exposed during the last fifteen years of his employment, Claimant testified that as part of his responsibilities as a mechanic, he was responsible for overhauling the mining equipment when it came out of the mines. This involved the hosing down of the equipment and removal of the coal dust, as well as the reconditioning of the moving parts of the equipment. Claimant further testified that the doors of the garage in which he worked were always open, and that he was frequently exposed to the coal dust which was disturbed by trucks that would pass by the garage.

Claimant also stated that he has not looked for alternative employment since he left his job with Employer. He did indicate that he was receiving a Miner’s Pension and Social Security benefits. Further, Claimant felt that he could not return to his previous job with Employer because that would expose him to dust, thus worsening his condition.

In support of his petition, Claimant presented the deposition testimony of Christopher J. Begley, M.D., a pulmonary physician who is board certified in internal medicine, pulmonary medicine, and critical care medicine. Dr. Begley stated that on September 16,1992, he conducted a physical examination of Claimant in addition to obtaining x-rays of Claimant’s lungs and Claimant’s medical history. Dr. Begley testified that, although Claimant had normal arterial blood gases, he found that Claimant had an obstructive lung disease in the small airways and simple pneu-moconiosis. Dr. Begley also stated that, even though there was no evidence that Claimant was experiencing significant pulmonary impairment, if Claimant were to return to an employment atmosphere where he would be exposed to coal dust, then he could possibly develop a significant pulmonary dysfunction. Based on this diagnosis, Dr. Beg-ley stated that Claimant should not return to his job as an above ground mechanic. On cross examination, Dr. Begley admitted that Claimant’s condition had not worsened during the last seven years of his employment. Dr. Begley also admitted that he was not sure if Claimant’s condition would worsen if he returned to his job with Employer.

In opposition to Claimant’s petition, Employer presented the deposition testimony of Gregory Fino, M.D., a pulmonary physician who is board certified in internal medicine and pulmonary medicine. Although he did not examine Claimant, Dr. Fino stated that he did review prior medical tests performed [606]*606on Claimant as well as Claimant’s medical records. Dr. Fino diagnosed Claimant as having coal worker’s pneumoconiosis but with no pulmonary impairment as a result of the disease. Dr. Fino further indicated that Claimant’s disease had not progressed since 1981, despite the fact that he continued to work as an above ground mechanic with Employer until 1987. Dr. Fino opined that Claimant could return to this position without restriction.

Employer also presented two medical reports completed by Robert Piekerill, M.D., who was also board certified in internal medicine and pulmonary medicine. In his first report dated December 9, 1992, Dr. Piekerill stated that based upon a physical examination of Claimant, as well as Claimant’s medical history and tests performed on Claimant, he diagnosed Claimant as having coal miner’s pneumoconiosis,1 COPD and bullous emphysema. Dr. Piekerill attributed Claimant’s COPD and bullous emphysema to his prior history of tobacco use and indicated that it was these two conditions which resulted in Claimant’s respiratory impairment. Dr. Piekerill stated that Claimant’s condition had not changed since he last examined him on May 23, 1988, and that he was of the opinion that Claimant could return to his job as a mechanic, indicating that exposure to some respiratory irritants could aggravate his COPD and emphysema. In his second report dated March 9, 1993, Dr. Piekerill agreed with the conclusions set forth by Dr. Fino.

Accepting the testimony of Dr. Begley over that of Dr. Fino and Dr. Piekerill, the Referee found that Claimant was suffering from an occupational disease and that Claimant knew or should have known of his disability on or about September 16,1992. Finding that Claimant did not “specifically exhibit a pulmonary impairment clearly designated resulting from coal dust exposure,” the Referee found that Claimant’s physical health would be in jeopardy upon his return to the coal mines. Therefore, the Referee granted Claimant’s petition.

Employer appealed to the Board which, citing to the recent Pennsylvania Supreme Court case of Republic Steel v. Workmen’s Compensation Appeal Board (Petrisek),2 reversed the Referee. The Board held that, when Claimant retired in 1987, he was still able to work, and therefore, he voluntarily retired. The Board, therefore, concluded that Claimant is not now entitled to benefits because of a diagnosis, rendered five years after his retirement, which indicated that additional exposure to coal dust would lead to Claimant’s disability. The instant appeal by Claimant followed.3

Claimant contends that, since he cannot return to the coal mines because of his pneu-moconiosis, he is disabled by an occupational disease and is entitled to receive benefits. Furthermore, Claimant contends that his retirement in 1987 was not voluntary, and therefore, the Board erroneously reversed the Referee’s award of benefits.

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Bluebook (online)
656 A.2d 604, 1995 Pa. Commw. LEXIS 141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/konitsky-v-workmens-compensation-appeal-board-pacommwct-1995.