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STEVE RAKOCZY AND WORKMEN'S COMPENSATION APPEAL BOARD v. JANDY COAL COMPANY (09/29/76)

decided: September 29, 1976.

STEVE RAKOCZY AND WORKMEN'S COMPENSATION APPEAL BOARD
v.
JANDY COAL COMPANY, INC., OLD REPUBLIC COMPANIES AND COMMONWEALTH OF PENNSYLVANIA. JANDY COAL COMPANY, INC. AND OLD REPUBLIC COMPANIES, APPELLANTS. WORKMEN'S COMPENSATION APPEAL BOARD AND VALENTINE BERISH V. JANDY COAL COMPANY, INC., OLD REPUBLIC COMPANIES AND COMMONWEALTH OF PENNSYLVANIA. JANDY COAL COMPANY, INC. AND OLD REPUBLIC COMPANIES, APPELLANTS



Appeals from the Orders of the Workmen's Compensation Appeal Board in cases of Steve Rakoczy v. Jandy Coal Company, Inc. and Commonwealth of Pennsylvania, No. A-70652; and Valentine Berish v. Jandy Coal Company, Inc., and Commonwealth of Pennsylvania, No. A-70518.

COUNSEL

Michael D. McDowell, with him Hirsch, Weise & Tillman, for appellants.

Eugene A. Creany, for appellees.

Mary Ellen Krober, Assistant Attorney General, with her David A. Ody, Assistant Attorney General, for Commonwealth.

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

Author: Wilkinson

[ 26 Pa. Commw. Page 460]

These cases consolidate two appeals by Jandy Coal Company, Inc., and its insurance carrier (appellants) from separate determinations of the Workmen's Compensation Appeal Board (Board). Both Valentine Berish and Steve Rakoczy filed petitions claiming compensation for total disability resulting from coalworker's pneumoconiosis. Berish alleged that he was totally disabled on July 29, 1974, and last exposed to coal dust hazard on June 20, 1974. Rakoczy alleged that he was totally disabled on July 30, 1974, and last exposed to coal dust hazard on June 28, 1974. Hearings were held before a referee and each claimant

[ 26 Pa. Commw. Page 461]

    was awarded total disability benefits, 50% of which were to be paid by appellants and 50% by the Commonwealth of Pennsylvania.

[ 26 Pa. Commw. Page ]

On appeal, the Board, without taking additional evidence, affirmed the decisions of the referee. The findings that total and permanent disabilities existed is supported by substantial evidence and was, therefore, binding on the Board, as it is on this court. See Pages Department Store v. Velardi, 464 Pa. 276, 346 A.2d 556 (1975). Liability is not at issue on this appeal. At issue is the apportionment of payments.

Section 305.1 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 411.1 (Supp. 1976) reads:

" Any compensation payable under this act for silicosis, anthraco-silicosis or coal-worker's pneumoconiosis as defined in section 108(q) for disability occurring on or after July 1, 1973 or for death resulting therefrom shall be paid as follows: if the disability begins between July 1, 1973 and June 30, 1974, inclusive, the employer shall pay twenty-five per centum and the Commonwealth seventy-five per centum; if the disability begins between July 1, 1974, and June 30, 1975, inclusive, the employer shall pay fifty per centum and the Commonwealth fifty per centum ; if the disability begins between July 1, 1975 and June 30, 1976, inclusive, the employer shall pay seventy-five per centum and the Commonwealth twenty-five per centum; and if the disability begins on or after July 1, ...


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