2 Pa. Commw. 556 | Pa. Commw. Ct. | 1971
Opinion by
This appeal arises as the result of a claim petition under The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P. L. 566, 77 P.S. §1201 et seq., filed by Henry Frombach (appellant) on or about August 25, 1966, alleging that he was totally disabled from silicosis. By order dated December 9, 1969, the Referee dismissed the claim petition, without discussion, finding: “6. We find as a fact that claimant is not totally and permanently disabled as a result of silicosis.” and “2. Since the claimant has failed to prove that he became totally disabled as a result of silicosis, he is not entitled to recoyer compensation under the provisions of the Pennsylvania Occupational Disease Act.” On June 24, 1970, the Workmen’s Compensation Board (Board) affirmed the Referee’s order by the following opinion, which we quote in toto: “Per Curiam: This case is before the Board on appeal of the claimant. After considering the record and the argument of the parties we can find no compelling reason to disturb the decision of the Referee. We, therefore, affirm the Findings of Fact, Conclusions of Law and Order of the Referee. The appeal of the claimant is dismissed.” On December 10, 1970, the Court of Common Pleas of Cambria County affirmed the Board’s decision, saying, “. . . with the conflict of evidence we have here, the Board had the right to accept or reject the testimony of any witness” and the Boat'd was not required to accept the testimony of any witness, even if uncontradicted. This appeal followed.
Appellant worked in a foundry for forty-two years, until June 30,1965, and his exposure to a silica hazard is not in dispute. Disputed, however, is an alleged conflict between two medical reports, one resulting from an examination of appellant on December 16, 1966, by a Dr. Lantos,
After reading 5 Gordy-Gray, Attorneys’ Textbook of Medicine ffl205E.42, 205E.43, and 205E.70 (3d ed. 1970), we are inclined to accept appellant’s contention that it is “a well known and thoroughly established medical fact that silicosis is an insidious and progressive disease”, and we wonder if there really is a conflict (upon which the lower court relied) between the two medical reports, prepared more than a year apart,
Nonetheless, because of the barren manner in which the Referee and the Board reported their actions (without mention of either medical report), we are at a loss as to how we are to intelligently review this case. We agree with the dissenting Judge in the Superior Court’s first disposition of Lowery, supra, when he said: “The Board’s terse and cryptic language, if approved by us,
We conclude, in the words of the Supreme Court in Lowery, that this case “must be remanded to the Board so that it may more precisely explain its reasons' for rejecting the claim, and so that effective judicial re: view of the Board’s decision may be had.” In short, when the question is raised, as Alexander Pope asked it, “Who shall decide when doctors disagree?”,
The order of the Court of Common Pleas of Cambria County is vacated, and the record is remanded to the Workmen’s Compensation Board for further proceedings consistent with this opinion.
“Conclusion — These studies are indicative of adequate pulmonary function. Summary: On the basis of this evaluation it is my opinion that this patient is not industrially disabled from a pulmonary standpoint. This man was able to work until he became eligible for Social Security benefits. The pulmonary disease he manifests at the present time is simple pneumoconiosis. He undoubtedly had this degree of involvement at the time he voluntarily stopped working. At that time, self-admittedly, he was able to perform the duties asked of him. Therefore, from a pulmonary standpoint, per se, it would seem reasonable that he could perform this same work today.”
“Conclusion — Marked obstructive disease. * * * Discussion and Conclusion — This man has nodular [final] stage silicosis. He is totally and permanently disabled for industrial purposes because of this condition which he acquired during his years of employment in the foundry.”
Moral Essays, Epistle III, line 1.