Opinion
Argued October 7, 1976
January 11, 1977.
Workmen's compensation — Scope of appellate review — Violation of constitutional rights — Error of law — Findings of fact — Substantial evidence — Occupational disease — Sufficient evidence — Incidence of disease in occupation — The Pennsylvania Occupational Disease Act, Act 1939, June 21, P.L. 566 — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Standard of review — Appointment of impartial medical expert — Discretion of referee.
1. In a workmen's compensation case where the party with the burden of proof prevailed below, review by the Commonwealth Court of Pennsylvania is to determine whether constitutional rights were violated, an error of law was committed or findings of fact were unsupported by substantial evidence. [152]
2. Testimony by a general practitioner of medicine that an employe's disability was caused by flour dust to which he was exposed in his employment and that the incidence of the resulting disease was substantially greater in his occupation than in the general public is sufficient to support findings to that effect by a referee in a workmen's compensation case. [153]
3. The fact that the Workmen's Compensation Appeal Board, in reviewing an award, imposed upon the claimant the heavier burden established by The Pennsylvania Occupational Disease Act, Act 1939, June 21, P.L. 566, rather than the lighter burden which should have been applied under The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736, is harmless error when cited by the employer. [153-4]
4. Under The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736, the decision to appoint an impartial medical witness to resolve a conflict in medical testimony is within the discretion of the referee, and the failure to make such appointment does not constitute reversible error. [154]
Argued October 7, 1976, before Judges MENCER, ROGERS and BLATT, sitting as a panel of three.
Appeal, No. 461 C.D. 1976, from the Order of the Workmen's Compensation Appeal Board in case of Mimo Tomarelli v. Imperial Food Products, No. A-69896.
Petition with the Department of Labor and Industry for disability benefits. Benefits awarded. Employer appealed to the Workmen's Compensation Appeal Board. Award affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Joseph A. Murphy, with him John R. Lenahan, and Lenahan, Dempsey Murphy, for appellant.
Ralph J. Iori, Jr., with him James N. Diefenderfer, for appellees.
On July 30, 1974, Mimo Tomarelli (claimant) filed a workmen's compensation claim petition under Section 108(n) of The Pennsylvania Workmen's Compensation Act (Act), 77 P. S. § 27.1 (n), which provides, inter alia, as follows:
Act of June 2, 1915, P.L. 736, as amended.
The term 'occupational disease' as used in this act, shall mean only the following diseases.
. . . .
(n) All other diseases (1) to which the claimant is exposed by reason of his employment, and (2) which are causally related to the industry or occupation, and (3) the incidence of which is substantially greater in that industry or occupation than in the general population.
The claimant alleged that he had suffered total disability as a result of pulmonary fibrosis and emphysema which were, in him, the result of exposure to flour dust during 49 years of employment in the baking industry.
The referee found that the claimant was so disabled for the reason alleged and awarded the benefits claimed against Imperial Food Products (appellant). The Workmen's Compensation Appeal Board (Board) affirmed the award and this appeal followed.
Our scope of review here, where the Board did not take additional evidence, is limited to a determination of whether or not constitutional rights were violated, an error of law was committed, or a necessary finding of fact was not supported by substantial evidence. Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commw. 176, 305 A.2d 757 (1973).
The appellant has raised four issues in this appeal, the first being that the claimant's exposure to flour dust had rendered him totally disabled in 1967 and that a claim petition filed in 1974, therefore, was barred by the Act. The referee found, however, that the claimant became "totally disabled on November 26, 1974," and we believe that this finding is sufficiently supported by the record.
When the claimant filed his petition, Section 315 of the Act, 77 P. S. § 602, provided that all claims for compensation shall be brought within two years after the injury, including disability resulting from occupational disease.
Although the claimant's physician testified that he had advised the claimant to get out of the baking industry as early as 1967 due to the disabling effects of the claimant's long-time exposure to flour dust, he also testified that the claimant's condition had deteriorated since 1970 and that he first found the claimant to be totally disabled on November 24, 1974.
The referee also found that the incidence of the claimant's occupational disease "is substantially greater in [the] occupation than in the general population," and the appellant next argues that this finding is not supported by the evidence, urging that it is based upon conjecture and speculation. The record shows, however, that the claimant's physician, a general practitioner who had known and treated the claimant for many years, testified that the claimant's condition had been caused by exposure to flour dust in his employment, that it was causally related to his occupation and that the incidence of this disease was substantially greater in that occupation than in the general public. While this may not have been the strongest evidence available on this issue, we believe that it is sufficiently substantial here to support the referee's finding.
The appellant's final two arguments are: (1) that the Board allegedly erred in its affirmance of the award by applying the wrong review standard, i.e., the standard under Section 108(n) of The Pennsylvania Occupational Disease Act (O.D. Act), 77 P. S. § 1208(n), and; (2) that the referee improperly failed to appoint an impartial medical witness under Section 420 of the Act, 77 P. S. § 831. It is true that the Board's opinion here uses language and cites precedents which relate to the standard of review under the O. D. Act, but it is clear that the O. D. Act imposes a more difficult burden on a claimant than does the Workmen's Compensation Act. Any error here, therefore, was harmless to the appellant. And, as to the authority of a referee or the Board to appoint an impartial medical witness when there is a conflict in the medical testimony, it is clear that such an appointment is discretionary. Workmen's Compensation Appeal Board v. Delgado, 22 Pa. Commw. 138, 348 A.2d 447 (1975). Consequently, the failure to exercise that discretion does not constitute reversible error where, as here, the referee chose to base his decision on the testimony of one of the medical witnesses. Workmen's Compensation Appeal Board v. Jones Laughlin Steel Corp., 22 Pa. Commw. 469, 349 A.2d 793 (1975).
Section 108(n) of the Act of June 21, 1939, P.L. 566, as amended, provides, inter alia, as follows:
The term 'occupational disease,' as used in this act, shall mean only the following diseases:
. . . .
(n) All other occupational diseases (1) to which the claimant is exposed by reason of his employment, and (2) which are peculiar to the industry or occupation, and (3) which are not common to the general population. (Emphasis added.)
2 Barbieri, Pa. Work. Comp., §§ 7.05(1), 7.11.
The order of the Board is affirmed.
ORDER
AND NOW, this 11th day of January, 1977, the order of the Workmen's Compensation Appeal Board, dated February 19, 1975, is affirmed.