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JOHN R. ERTZ AND WORKMEN'S COMPENSATION APPEAL BOARD v. GLEN NAN (03/25/77)

decided: March 25, 1977.

JOHN R. ERTZ AND WORKMEN'S COMPENSATION APPEAL BOARD
v.
GLEN NAN, INC. AND COMMONWEALTH OF PENNSYLVANIA. GLEN NAN, INC., APPELLANT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John R. Ertz v. Glen Nan, Inc. and Commonwealth of Pennsylvania, No. A-70895.

COUNSEL

Joseph A. Murphy, with him Lenahan, Dempsey & Murphy, for appellant.

Eugene Duffy, with him John E. O'Connor and James N. Diefenderfer, for appellees.

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

Author: Kramer

[ 29 Pa. Commw. Page 410]

This is an appeal by Glen Nan, Inc. and its former insurance carrier, Rockwood Insurance Company (Rockwood), from an order of the Workmen's Compensation Appeal Board (Board), which ordered Rockwood to pay 25% of the disability benefits awarded to John R. Ertz.

There is no dispute in this appeal as to Ertz's entitlement to compensation benefits for total disability due to anthracosilicosis under Section 108(q) of The Pennsylvania Workmen's Compensation Act*fn1 (Act). The sole question for resolution is whether and to what extent Rockwood or The State Workmen's Insurance Fund (The Fund) is liable for payment of those benefits.

Ertz was employed as an anthracite coal miner for Glen Nan, Inc. and worked in and around the mines on the 11 P.M. to 7 A.M. shift. The last shift worked by Ertz commenced at 11 P.M. on February 21, 1974 and ended at 7 A.M. on February 22, 1974. During that shift, the insurance coverage provided to Glen Nan by Rockwood expired at 12:01 A.M. on February 22, while coverage provided by The Fund commenced at precisely the same moment.

After determining that Ertz was totally disabled, as of October 25, 1974, by anthracosilicosis, the referee

[ 29 Pa. Commw. Page 411]

    apportioned the payment of benefits, pursuant to Section 305.1 of the Act,*fn2 at 50% to be paid by the Commonwealth and 50% to be paid by Glen Nan or its insurance carrier. The referee, however, further apportioned the employer's duty to pay by directing Rockwood and The Fund to each pay 25% of the benefits awarded.*fn3 Objecting to this latter apportionment, Rockwell appealed to the Board, which affirmed the referee's decision.

It has been held that the compensation authorities "have jurisdiction to determine the general question of the liability of an insurer under the policy and whether the policy is in force or has been cancelled." Eldridge v. Blue Ridge Textile Co., 160 Pa. Superior Ct. 578, 584, 52 A.2d 339, 342 (1947). See Workmen's Compensation Appeal Board v. Cicioni, 29 Pa. Commonwealth Ct. 381, 370 A.2d 1256 (1977). Shiery v. Lauffer Tire Service, Inc., 197 Pa. Superior Ct. 209, 177 A.2d 455 (1962); Kracoski v. Bernice White Ash Coal Co., 183 Pa. Superior Ct. 155, 130 A.2d 190 (1957); Gronski v. Jeddo-Highland Coal Co., 168 Pa. Superior Ct. 605, 81 A.2d 590 (1951); Karoly v. Jeddo-Highland Coal Co., 166 Pa. Superior Ct. 571, 73 A.2d 214 (1950); Gaydosh v. Richmond Radiator Co., 164 Pa. Superior Ct. 154, 63 A.2d 502 (1949). Such a determination is of course, subject to review by this Court. In a case, such as this, where ...


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