Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph J. Kreon v. Jones & Laughlin Steel Corp., and Commonwealth of Pennsylvania, No. A-71077.
Raymond F. Keisling, with him Will & Keisling, for appellant.
Mary Ellen Krober, Assistant Attorney General, with her David A. Ody, Assistant Attorney General, and James N. Diefenderfer, for appellees.
Judges Wilkinson, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 28 Pa. Commw. Page 374]
Joseph J. Kreon filed a claim petition for workmen's compensation benefits alleging total disability beginning August 15, 1974. He further alleged that his disability occurred because of anthraco-silicosis suffered as a result of forty-seven years of coal mining. After a hearing on the claim, a referee awarded benefits, fifty percent to be paid by the Commonwealth of Pennsylvania and fifty percent by Jones & Laughlin Steel Corporation (Jones and Laughlin), the claimant's last employer. It appealed the decision to the
[ 28 Pa. Commw. Page 375]
Workmen's Compensation Appeal Board (Board) which affirmed the award.
This Court has now been asked by Jones and Laughlin to review the apportionment of liability pursuant to Section 305.1 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411.1, which 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, 1976, all compensation shall be payable by the employer.
The referee determined the apportionment on a finding that the claimant had become totally and permanently disabled on August 15, 1974, the date on which a medical examination was performed by a doctor who concluded that Kreon was so disabled from anthraco-silicosis. This was obviously within the period between July 1, 1974 and June 30, 1975, and, therefore, the referee ruled that liability for payment of the award should be divided equally between the employer and the Commonwealth.
[ 28 Pa. Commw. Page 376]
Jones and Laughlin contends that the record contains evidence which indicates that Kreon was at least partially disabled when he ceased work on June 21, 1974. It further contends that, because Section 305.1 uses the term "disability" rather than "total disability," the employer's liability should be determined ...