Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph Witak v. Jones & Laughlin Steel Corporation and Commonwealth of Pennsylvania, No. A-70330.
Raymond F. Keisling, with him Will & Keisling, for appellant.
Mary Ellen Krober, Assistant Attorney General, with her James N. Diefenderfer, for appellees.
Judges Crumlish, Jr., Kramer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.
[ 24 Pa. Commw. Page 177]
The facts of this case are not materially different from those in Workmen's Compensation Appeal Board v. Rochester & Pittsburgh Coal Company, 23 Pa. Commonwealth Ct. 441, A.2d (1976), where we held that the date on which total disability was found by a referee to have occurred, (and neither the last day of employment nor the date of last exposure to the hazards of an occupational disease), is the date with reference to which the allocation of liability between the Commonwealth and the employer must be made under Section 305.1 of The Pennsylvania Workmen's Compensation Act.*fn1
[ 24 Pa. Commw. Page 178]
In this case the claimant, Joseph Witek, filed a claim for workmen's compensation due to anthracosilicosis on January 13, 1975. After hearing, a referee awarded Witek benefits for permanent total disability. Payments of benefits were assessed 25% against the employer, a self-insurer, and 75% against the Commonwealth pursuant to Section 305.1 of the Pennsylvania Workmen's Compensation Act, 77 P.S. § 411.1.
The referee made the following findings of fact:
"3. The Claimant was last employed in the bituminous coal mining industry by Defendant, Jones & Laughlin Steel Corporation, from 1946 to March 16, 1974, inclusive, at an average weekly wage of $230.00.
"4. On December 11, 1974, the Claimant became permanently and totally disabled due to anthracosilicosis after having had an aggregate employment of at least two years in the Commonwealth of Pennsylvania, during a period of ten years next preceding the date of disability in an occupation having a silica hazard."
The Commonwealth and the employer appealed to the Workmen's Compensation Appeal Board, which affirmed the decision of the referee but, by using December 11, 1974 as the date of reference for application of Section 305.1, reallocated the liability for compensation, assessing 50% against the employer and 50% against the Commonwealth. The employer has appealed, contesting the reassessment. It contends, as did the employer in Workmen's Compensation Appeal Board v. Rochester & Pittsburgh Coal Company, supra, that the date of disability for the purpose of determining the allocation of percentages ...