Appeal from the Order of the Court of Common Pleas of Berks County in case of Mark S. Fitterling v. Birdsboro Corporation and Commonwealth of Pennsylvania, Department of Labor and Industry, No. 59 January Term, 1974.
David A. Ody, Assistant Attorney General, with him Samuel Vary, Assistant Attorney General, for appellant.
Marc S. Jacobs, with him Roland J. Artigues, and Galfand, Berger, Senesky, Lurie and March, for appellee.
Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.
This is an appeal by the Commonwealth of Pennsylvania (Commonwealth) from an order of the Court of Common Pleas of Berks County which sustained the appeal of Mark S. Fitterling (claimant) from a decision of the Workmen's Compensation Appeal Board (Board) and reinstated a referee's award of benefits under The Pennsylvania Occupational Disease Act (Act).*fn1
On April 17, 1972, claimant filed an occupational disease claim with the Bureau of Workmen's Compensation, alleging that he had become totally disabled from silicosis as of November 12, 1972, as a result of his employment with the Birdsboro Corporation in an occupation having a silica hazard. Hearings were then held before a referee, who subsequently awarded compensation to claimant, to be paid by the Commonwealth,*fn2 based on the following findings of fact:
"1. That an employer-employee relationship existed between the defendant [Birdsboro] and claimant in November 1971.
"2. In accordance with Section 302 of the Occupational Disease Act, it is conclusively presumed and found to be a fact that the parties hereto have accepted the provisions of Article III of said Act.
"3. Claimant herein was employed by defendant herein until 11-12-71. Claimant worked for defendant and defendant's predecessor corporations continually since 5-5-42.
"4. Defendant's industry is one in which silicosis is a hazard and this fact gives rise to the presumption set forth in Section 301(f) of the Occupational Disease Act.
"5. Claimant's testimony and evidence adequately established evidence of exposure to sand dust while in the employ of defendant and ...