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RACHOCKI v. BERWIND-WHITE COAL MINING COMPANY (ET AL. (12/10/69)

decided: December 10, 1969.

RACHOCKI
v.
BERWIND-WHITE COAL MINING COMPANY (ET AL., APPELLANT)



Appeal from order of Court of Common Pleas of Cambria County, March T., 1968, Nos. 620 and 621, in case of Anthony Rachocki v. Berwind-White Coal Mining Company et al.

COUNSEL

Frederick F. Coffroth, Special Assistant Attorney General, with him Thomas E. Roberts, Assistant Attorney General, Raymond Kleiman, Deputy Attorney General, and William C. Sennett, Attorney General, for State Workmen's Insurance Fund, appellant.

Francis J. Leahey, Jr., with him Eugene A. Creany, and Englehart, Creany, Englehart & Leahey, for claimant, appellee.

John T. Crum, Special Assistant Attorney General, with him Clyde M. Hughes, Jr., Assistant Attorney General, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J.

Author: Watkins

[ 216 Pa. Super. Page 115]

These are appeals by the State Workmen's Insurance Fund from decisions of the Workmen's Compensation Board dismissing a petition to terminate by the fund and granting a suspension of certain payments from the Commonwealth Occupational Disease Fund. The claimant, Anthony Rachocki, was injured on June 28, 1962, when, while lifting a scale into a car, he stepped into a hole and suffered a slipped disc. An agreement was entered providing for total disability. Compensation was paid under this agreement until March 4, 1963, when a supplemental agreement was executed providing for fifty (50) per cent partial disability payments. Payments under this agreement were paid until December 17, 1964. On July 31, 1963, a

[ 216 Pa. Super. Page 116]

    claim petition was filed setting forth that the claimant was totally disabled as a result of anthracosilicosis as of June 14, 1963. This matter proceeded to a hearing and he received an occupational disease award as of June 14, 1963.

The Commonwealth on behalf of the Commonwealth Occupational Disease Fund filed a petition to suspend the occupational disease payments in view of the fifty (50) per cent disability payments as the result of the accident. The State Workmen's Insurance Fund filed a petition to terminate the partial disability payments.

A hearing was held and the State Fund did not present any testimony to sustain its burden of proof that all disability as a result of the accident had ceased. It took the position that the determination of total disability as a result of occupational disease terminated the partial disability payments as a matter of law.

The referee dismissed the termination petition and directed that fifty (50) per cent partial disability payments continue into the indefinite future until claimant's disability as a result of his accident changes or ceases, subject to the limitations of the Act.

As to the suspension petition, the referee ordered a partial suspension of payments from the occupational disease fund during the period that he has and will receive payments for partial disability as a result of the accident so that total payments to the claimant from both ...


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