Appeal from the Order of the Workmen's Compensation Appeal Board in case of Zigmund Novak v. Mathies Coal Company and Commonwealth of Pennsylvania, No. A-71159.
Edward C. Schmidt, with him Andrew Rose, and Rose, Schmidt and Dixon, for appellant.
Mary Ellen Krober, Assistant Attorney General, with her James N. Diefenderfer, for appellees.
Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 29 Pa. Commw. Page 122]
Mathies Coal Company (Mathies) appeals to this Court from an order of the Workmen's Compensation
[ 29 Pa. Commw. Page 123]
Appeal Board (Board) which affirmed*fn1 the referee's award of total disability benefits to Zigmund Novak, a former Mathies employe.
Benefits were awarded to Novak beginning July 2, 1974 for total disability caused by coal workers' pneumoconiosis. The finding of the referee with which the Board agreed, i.e., that Novak became totally and permanently disabled on that date, was based upon testimony by his family physician who had examined him on July 2, 1974. Mathies was ordered to pay fifty percent of the compensation, with the Commonwealth of Pennsylvania paying the other fifty percent, pursuant to Section 305.1 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411.1 which provides:
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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 Page 124} 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. (Emphasis added.)
Mathies has raised several issues on appeal, relating exclusively to the allocation of liability. First, it asks us to hold that the date of last exposure to an occupational hazard should be used for purposes of determining the allocation of liability between the employer and the Commonwealth. This would require that we overrule a number of recent opinions by this Court in which we rejected similar, if not identical, arguments. See Garden Coal Co., Inc. v. Workmen's Compensation Appeal Board, 27 Pa. Commonwealth Ct. 568, 367 A.2d 360 (1976); Workmen's Compensation Appeal Board v. Jones & Laughlin Steel Corporation, 24 Pa. Commonwealth Ct. 176, 354 A.2d 925 (1976); Workmen's Compensation Appeal Board v. Rochester & Pittsburgh Coal Co., 23 Pa. Commonwealth Ct. 441, 353 A.2d 82 (1976). We remain unpersuaded that the reasoning contained in these cases is illogical, as Mathies has suggested here, and we continue to believe that "the date of disability does not automatically coincide with the date of final exposure but must be determined independently on the facts of each case." Rochester & Pittsburg Coal Co., supra, 23 Pa. Commonwealth Ct. at 444, 353 A.2d at 83.
In addition, Mathies urges us to conclude that "use of the doctor examination date as the date of disability for purposes of allocation" violates constitutional ...