Republic Steel Corp. v. Commonwealth , 56 Pa. Commw. 57 ( 1981 )

OPINION by

Judge Craig,

Employer Republic Steel Corporation, self-insured, appeals from an order of the Workmen’s Compensation Appeal Board (board) affirming a referee’s decision apportioning the liability to pay benefits equally between the employer and the Commonwealth, instead of 25% upon the employer and 75% upon the Commonwealth.

The claimant, an underground coal miner from 1935 to February 27,1974, terminated his employment because he had difficulty breathing. Dr. Macy I. Levine examined the claimant on May 3, 1974 and on September 29, 1974. After the second examination, Dr. Levine prepared a report stating that the claimant was totally and permanently disabled due to pneumo-coniosis.

For the purpose of this appeal, disability is not at issue. Here the employer questions the referee’s finding that the claimant became totally disabled on September 29, 1974, pointing instead to the testimony of Dr. Levine that claimant was disabled before May 3, 1974, which date, the employer contends, is the relevant date for the purpose of apportioning liability under Section 305.1 of The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, added by Section 2 of the Act of December 6,1972, P.L. 1627, 77 P.S. §411.1; that section provides that, if the disability began between July 1, 1973 and June 30, 1974, the employer must pay 25% and the Commonwealth 75%, but if the disability began between July 1, 1974 and June 30, 1975, liability is apportioned equally between the employer and the Commonwealth.

An employer who disputes the date of disability has the burden of proving the actual date. Gateway Coal Co. v. Workmen’s Compensation Appeal Board, 36 Pa. Commonwealth Ct. 608, 388 A.2d 1122 (1978).

Where, as here, the referee has found that the party with the burden has failed to meet it, our scope of review is limited to whether the referee capriciously disregarded competent evidence. Jones & Laughlin Steel Corp. v. Workmen’s Compensation Appeal Board, 39 Pa. Commonwealth Ct. 103, 394 A.2d 1091 (1978). On the record before us, we cannot so hold.¹

In the present case, three medical experts other than Dr. Levine examined the claimant after September 29, 1974, and testified that the claimant was not disabled at the times of their respective examinations. Having assessed the testimony of a witness, the referee may accept or reject the testimony of any witness in whole or in part. American Refrigerator Equipment Co. v. Workmen’s Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 377 A.2d 1007 (1977). Here the referee resolved the conflicting testimony as to disability in favor of the claimant, by accepting Dr. Levine’s testimony as to the ultimate existence of disability; however, considering the testimony of the other medical experts, the referee apparently rejected Dr. Levine’s testimony in part, as to the proposition that claimant’s disability antedated May 3, 1974. Therefore, we cannot question the referee’s unwillingness to find as a fact the existence of disability before September 29, 1974.

Employer’s reliance on Jones & Laughlin Steel Corp. v. Workmen’s Compensation Appeal Board, 41 Pa. Commonwealth Ct. 223, 399 A.2d 444 (1979) is misplaced. There, unlike here, all the medical experts testified that the claimant’s disability commenced before the date which the referee adopted.

Accordingly, we affirm the decision of the board.

Order

Astd Now, January 13,1981, the order of the Workmen’s Compensation Appeal Board at Docket No. A-74810, dated January 11,1980, is affirmed as amended under date of February 14, 1980, and judgment is entered in favor of claimant, Mike Husarik and against Bepublic Steel Corporation in accordance with said amended order of the board.

1 In workmen’s compensation cases, the factfinding function, including determinations of credibility, rests with the referee. Wheeling-Pittsburgh Steel Corp. v. Workmen’s Compensation Appeal Board,, 41 Pa. Commonwealth Ct. 279, 398 A.2d 1107 (1979).