76 Pa. Commw. 286 | Pa. Commw. Ct. | 1983
Opinion by
Herbert K. Helverson (claimant) has filed a petition for review of the actions of the workmen’s compensation authorities denying him an award for alleged work-related disability. The claimant initially averred in his claim petition that he was permanently and totally disabled from silicosis as a result of exposure to airborne silica and other substances during the course of his twenty-five years of employment with the Central Foundry of Quakertown, Pennsylvania. The petition was amended at the first evidentiary
The claimant states three questions for our consideration, but all three address the same point — that the referee incorrectly assessed the record evidence and for this reason mistakenly held that the claimant had not met his burden to show that he was disabled by an occupational disease.
The evidence adduced during three hearings between February and .September, 1980, is that the duties of the claimant’s employment with Central Foundry including, most recently, twelve years as a cupola
On this issue, the testimony of two physicians was adduced. The claimant’s treating physician, Dr. Mur
A Dr. Theodore Rodman, M.D., Professor of Medicine at the Temple University School of Medicine and Chief of the Temple University Hospital’s pulmonary function laboratory, testified for the defendant at a hearing conducted on September 5,1980. Dr. Rodman described his examination of the claimant and the diagnostic tests and procedures which he had performed or which had been performed by others at his direction
Q: Any of [the claimant’s] lung problems or his disability that arose in April, 1980 came in your opinion exclusively from smoking?
A: Yes, sir. There’s no question about it.
Q: Do you disagree with Dr. Miller’s conclusion — not conclusion, diagnosis — that [the claimant] suffered from chronic obstructive disease secondary to silicosis?
A: Yes, sir.
Q: Do you disagree with his conclusion that [the claimant] is disabled because of his exposure from his work.
A: Yes, sir.
Q: Do you disagree with his conclusion that the diseases diagnosed in [the claimant] are particular to the type of industry or occupation at which he has been engaged for twenty-five years?
A: I not only disagree, but I would characterize that as utter nonsense.
On the occasion of this appeal, the claimant emphasizes by repitition his contention that the testimony of Dr. Miller described above constitutes substantial evidence in support of his claim. We cannot
In a workmen’s compensation case the weight of testimony is exclusively for the referee to determine; and his decision to accept the testimony of one competent medical witness over that of another equally competent medical witness will not be disturbed on appeal, E.g. Modern Transfer v. Workmen’s Compensation Appeal Board, 47 Pa. Commonwealth Ct. 592, 408 A.2d 900 (1979). Such a decision of itself does not constitute a capricious disregard of evidence, E.g. Nye v. Workmen’s Compensation Appeal Board, 43 Pa. Commonwealth Ct. 98, 401 A.2d 875 (1979); Workmen’s Compensation Appeal Board v. International Furnace Corp., 21 Pa. Commonwealth Ct. 390, 345 A.2d 780 (1975).
McHale v. Workmen’s Compensation Appeal Board, 56 Pa. Commonwealth Ct. 344, 346, 425 A.2d 34, 35 (1981).
Finally, the claimant argues in the body of his brief
The presumption referred to by its terms is applicable only when it is shown that the claimant suffers from an occupational disease and was employed in an occupation or industry in which that occupational disease is a hazard. Gomori v. Workmen’s Compensation Appeal Board, 61 Pa. Commonwealth Ct. 164, 433 A.2d 142 (1981); Harrigan v. Workmen’s Compensation Appeal Board, 40 Pa. Commonwealth Ct. 390, 397 A.2d 490 (1979); Consolidation Coal Co. v. Workmen’s Compensation Appeal Board, 37 Pa. Commonwealth Ct. 412, 391 A.2d 14 (1978). The presence of an occupational disease was the controverted issue in this case and the referee concluded that the preponderance of the evidence was to the negative. Therefore, the presumption was inapplicable.
On the matter of the application for a rehearing, the claimant asserts that he desires to augment the record with the testimony of a Dr. Russel Jenkins which evidence “was not known to attorney for Claimant until April, 1982 and therefore could not have been presented at the original hearing.” The grant or denial of a request for rehearing is charged to the discretion of the Board and review by this Court is limited to the correction of clear abuses of that discretion. Douglas v. Workmen’s Compensation Appeal Board, 32 Pa. Commonwealth Ct. 156, 377 A.2d 1300 (1977). A rehearing is appropriate only for the introduction of newly discovered, noncumulative evidence and will not be granted to permit a party to strengthen weak proofs already presented. Leskin v. Workmen’s Compensation Appeal Board, 70 Pa. Commonwealth Ct. 539, 453 A.2d 715 (1982); Anderson v. Workmen’s Compensation Appeal Board, 51 Pa. Commonwealth Ct. 582, 414 A.2d 774 (1980). Rehearing
Order affirmed.
Order in 872 C.D. 1982
And Now, this 11th day of August, 1983, the order of the Workmen’s Compensation Appeal Board in the above-captioned matter is hereby affirmed.
And Now, this 11th day of August, 1983, the order of the Workmen’s Compensation Appeal Board in the above-captioned matter refusing the request for a rehearing of Herbert K. Helverson is hereby affirmed.
Although ill-defined in the record, we understand a cupola to be a vertical, cylindrical furnace for melting iron in a foundry.
The examination, and interview with the patient took about five hours. The diagnostic procedures were described by Dr. Rod-man as a “complete battery of tests” and included x-ray studies, an electrocardiogram, pulmonary function studies, and blood tests.
These issues are not, as they are required bo be, enumerated in the Statement of Qustions Involved. Pa. R.A.P. No. 2116. (“This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the Statement of Questions Involved or suggested thereby.”) The issue of the propriety of the Board’s denial of the claimant’s request for a rehearing is the subject of the Petition for Review docketed to No. 2399 O.D. 1982, which petition is not separately supported by written argument.