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ESTHER M. KELLY v. NORTH AMERICAN REFRACTORIES (05/02/74)

decided: May 2, 1974.

ESTHER M. KELLY, WIDOW OF ELMER E. KELLY, DECEASED, APPELLANT,
v.
NORTH AMERICAN REFRACTORIES, PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE CO., INSURANCE CARRIER, AND THE COMMONWEALTH OF PENNSYLVANIA, APPELLEES



Appeal from the Order of the Court of Common Pleas of Huntingdon County, in case of Esther M. Kelly, Widow of Elmer E. Kelly, Deceased, v. North American Refractories and Commonwealth of Pennsylvania, No. 17 February Term, 1969.

COUNSEL

Alexander J. Pentecost, with him Swirles L. Himes, for appellant.

James S. Routch, with him Merle K. Evey and Patterson, Evey, Routch & Black, for appellees, North American Refractories and Pennsylvania Manufacturers' Association Insurance Co.

Samuel C. Vary, Assistant Attorney General, for appellee, Commonwealth of Pennsylvania.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 13 Pa. Commw. Page 323]

Elmer E. Kelly (Kelly) started his career as a laborer in the brickyard of North American Refractories in 1937 and ended it on September 13, 1966, because of "shortness of breath." On December 21, 1966, Kelly filed a claim petition for disability benefits for silicosis under the Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq. He died on May 7, 1967, before his "silicosis case" came to hearing, and on October 25, 1967, his widow, Esther M. Kelly (Claimant) filed a fatal claim petition for death benefits under the Act, alleging that silicosis was attributed to his place of employment and it contributed to her husband's death.

A Referee conducted two hearings wherein Claimant introduced a medical report which stated that decedent was totally and permanently disabled because of his exposure to silica dust in his capacity as a refractory worker. Moreover, the death certificate introduced by both parties asserted that decedent's cause of death was meningitis.

The Referee determined that Kelly had been totally disabled by silicosis and awarded lifetime benefits to Claimant from the date Kelly filed his claim petition up to the date of his death. The Referee further determined that the Claimant had failed to meet the burden of proving that Kelly's death was the result of silicosis caused by his employment and so in turn disallowed death compensation benefits.

Claimant appealed the Referee's decision to the Workmen's Compensation Appeal Board (Board) which affirmed the Referee's findings of fact and conclusions of law which in effect validated the disallowance of death benefits. Claimant then appealed that decision to the Court of Common Pleas of Huntingdon County. In addition, Claimant filed a Petition for Rehearing with the Board. It was denied on the ground

[ 13 Pa. Commw. Page 324]

    that the new information which Claimant sought to introduce at the rehearing had been available previously to Claimant. The Board also determined that Claimant's Petition for Rehearing did not comply with Board published rules. This decision was also appealed to the Common Pleas Court of ...


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