89 Pa. Commw. 496 | Pa. Commw. Ct. | 1985
Opinion by
This is an appeal by the Duquesne Light Company (Duquesne) from an order of the Workmen’s Compensation Appeal Board (Board). That order affirmed a referee’s decision which awarded compensation for total disability to Albert Zalar (Claimant). We affirm.
This case has an extended and somewhat complex procedural history and presents the following scenario. Claimant was employed by Duquesne in the bituminous
In this appeal, Duquesne contends that: (1) the referee erred in his appointment of Dr. Silverman as an impartial physician in light of its evidence of bias; (2) the finding that Claimant is totally disabled as of July 1, 1977 is not supported by substantial evidence; and (3) the referee improperly imposed upon Duquesne the costs of the deposition of the impartial physician. We shall address these issues seriatim.
Duquesne’s allegation of bias on the part of Dr. Silverman to favor workmen’s compensation claimants is based solely upon Duquesne’s listing of the numerous instances in which Dr. Silverman has testified in workmen’s compensation cases, predominantly in favor of the claimants, and that he had testified against Duquesne as a claimant’s expert witness in an unrelated case. We have previously held that an attack on the bias of an expert witness is a matter of credibility which is to be determined solely by the referee. Armco Steel Corp. v. Workmen’s Compensation Appeal Board (Kolar), 60 Pa. Commonwealth Ct. 195, 431 A.2d 363 (1981); Westinghouse Electric Corp. v. Workmen’s Compensation Appeal Board (Bencloski), 41 Pa. Commonwealth Ct. 610, 399 A.2d 1178 (1979). Our review of the record, including the voir dire of Dr. Silverman by Duquesne’s counsel, convinces us that the referee did not abuse his discretion when he appointed Dr. Silverman as an impartial physician in this case. An employer cannot conclusively establish bias on the part of a physician so as to disqualify that physician from being an impartial
Duquesne’s next contention is that the referee’s findings as to Claimant’s total disability and the date of that disability are not supported by substantial evidence.
We now turn to Duquesne’s final contention which is that the referee erred when he imposed the costs of deposing the impartial physician upon it under Section 440 of the Act.
The Board or referee, as the case may be, shall fix the compensation of such physicians, surgeons, and experts, which when so fixed, shall be paid out of the sum appropriated to the Department of Labor and Industry for such purpose. (Emphasis added.)
The statute clearly limits its coverage to the compensation, or fees, paid to impartial physicians appointed under Section 420 for their services
Having found the referee’s findings supported by substantial evidence, no error of law committed nor constitutional right violated, we shall, therefore, affirm the decision of the Board.
Order
And Now, May 24, 1985, the order of the Workmen’s Compensation Appeal Board at Docket No. A-81495, dated June 9, 1983, is hereby affirmed.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §271.
77 P.S. §831.
Duquesne’s evidentiary attack on the referee’s findings centers on finding number five which reads as follows:
5. The Referee has considered all of the medical deposition testimony and medical evidence in this case. On the basis of substantial, competent and credible medical evidence of record in this case from Dr. J. D. Silverman, the impartial physician appointed in this case by the Referee, your Referee finds that on June 8, 1977, Albert Zalar, claimant herein, became totally and permanently disabled from anthracosilieosis, after having had an aggregate employment of at least two years next preceding the date of disability in an occupation having a silica or coal hazard. Claimant’s said disability resulted in whole or in part from his exposure to the hazard of occupational disease after June 30, 1973, in employment covered by the Pennsylvania Workmen’s Compensation Act, as amended. Dr. Silverman opined that claimant does have significant pulmonary disease—namely, anthracosilieosis, that it has occurred as the result of his total and cumulative exposure to dust in the mines, that it makes a very significant contribution to his overall disability and, in his opinion, even in the absence of any other medical problems (cardio-vascular status and controlled diabetes) would preclude his returning to that type of work or any similar type of employment on the*501 basis of his anthracosilicosis alone. The defendant failed to introduce any testimony or evidence in this ease that there is work outside of the mining industry that claimant can perform. The defendant chose to defend this case on the basis of no disability whatsoever. On the basis of Dr. Silverman’s opinion your Eeferee finds that on account of his anthracosilicosis claimant is totally and permanently disabled from mine or similar type of employment.
The deposition testimony of Dr. Young Dae Cho is part of the record in this case.
77 P.S. §996.
77 P.S. §832.
The referee properly assessed the fees charged by the impartial physician against the Department as required by Section 420.