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GARDEN COAL COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD AND RUSSELL ATEON. GARDEN COAL COMPANY (12/16/76)

decided: December 16, 1976.

GARDEN COAL COMPANY, INC. AND OLD REPUBLIC INSURANCE COMPANY, INSURANCE CARRIER
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND RUSSELL ATEON. GARDEN COAL COMPANY, INC. AND OLD REPUBLIC INSURANCE COMPANY, INSURANCE CARRIER, APPELLANTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Russell Ateon v. Garden Coal Company, Inc. and Commonwealth of Pennsylvania, No. A-70765.

COUNSEL

Joseph J. Lee, for appellants.

Mary Ellen Krober, Assistant Attorney General, with her David A. Ody, Assistant Attorney General, and James N. Diefenderfer, for appellees.

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

Author: Kramer

[ 27 Pa. Commw. Page 569]

This is an appeal by Garden Coal Company and its insurance carrier (appellants) from a decision of the Workmen's Compensation Appeal Board (Board). On October 10, 1974, the claimant, Russell Ateon, filed a petition pursuant to Section 108(q) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 27.1(q), claiming compensation for total disability resulting from coal-worker's pneumoconiosis. After a hearing, the referee awarded the claimant total disability benefits, of which 25% were to be paid by appellants and 75% by the Commonwealth of Pennsylvania.

The referee made the following findings of fact, which read in pertinent part:

9. That the claimant was examined by Dr. Russel Boykiw . . . on August 13, 1974, and a copy of Dr. Boykiw's medical report dated September 10, 1974, along with an x-ray and pulmonary function studies were offered into evidence without objection. Dr. Boykiw concluded that the claimant 'is totally disabled because of pulmonary fibrosis resulting from coal dust and secondarily pulmonary emphysema.'

12. That after considering all of the testimony and medical evidence presented, your referee

[ 27 Pa. Commw. Page 570]

    finds as a fact that the claimant has been totally and permanently disabled since August 13, 1974, because of coal worker's pneumoconiosis. . . .

13. That the claimant first learned the cause of his disability on September 10, 1974. . . .

15. That on January 9, 1974, the claimant filed a Claim Petition under Section 301-i of the Pennsylvania Occupational Disease Act, and an award was made for total disability at the rate of ...


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