Appeal, No. 42, April T., 1958, from judgment of Court of Common Pleas of Westmoreland County, Jan. T., 1957, No. 163, in case of Marion E. Shrum, widow of Frank Shrum, v. Atlantic Crushed Coke Company et al. Judgment reversed.
Robert W. Smith, Jr., with him Smith, Best & Horn, for appellants.
Joseph M. Loughran, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 186 Pa. Super. Page 378]
This appeal is taken by Atlantic Crushed Coke Company and Old Republic Insurance Company from a Workmen's Compensation case in which the action of the Workmen's Compensation Board in awarding compensation to the claimant widow was affirmed.
The decedent, Frank Shrum, was employed as a motorman in the mines of the Atlantic Crushed Coke Company from 1908 to September 2, 1948 after which he never again was engaged in any gainful employment. On November 8, 1950, Frank Shrum filed a claim for disability compensation under the provisions of the Occupational Disease Act, 77 P.S. section 1401 et seq., claiming total disability as a result of silicosis contracted during the course of his employment. On June 4, 1951, the Referee filed an award in favor of the claimant. The Board, on appeal, by order dated April 4, 1952, appointed an impartial medical expert to examine the claimant, review the record and testify at a subsequent hearing to be held. At a rehearing held
[ 186 Pa. Super. Page 379]
by the Referee on May 28, 1952, the impartial medical expert testified that the claimant was totally disabled, but not as a result of silicosis contracted during the course of his employment. The Referee thereupon entered an order on December 15, 1952, disallowing compensation. An appeal from this order was filed before the Workmen's Compensation Board, and the Board affirmed in an opinion dated July 29, 1953. No appeal was taken by the claimant from this final order.
Frank Shrum died on September 9, 1953 and on October 27, 1953, his widow, Marion E. Shrum, filed a claim petition alleging that her husband's death resulted from silicosis contracted during the course of his employment with the appellant company. Answer to this petition was filed denying the factual allegations of the petition and averring that her claim was barred under section 301 (c) of the Act of 1951, P.L. 1811, as amended, 77 P.S. 1401, because the husband's death did not occur within three years after his last exposure to a silica hazard, September 2, 1948.
A hearing was held on the widow's claim by the Referee on December 15, 1953, at which time it was stipulated by counsel for both parties that if the claimant's medical witness, who attended the autopsy performed upon decedent, was called, he would reiterate his previous testimony to the effect that decedent was totally disabled from silicosis to the date of his death, and that his death was caused solely by that disease. It was further stipulated that the autopsy had been performed by Dr. John F. Beauregard, pathologist, and that his report, admitted in evidence, indicated that death was caused by silicosis. On January 7, 1954, the Referee disallowed the claim for the ...