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ROCHESTER & PITTSBURGH COAL COMPANY AND OLD REPUBLIC INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD AND WILLIAM H. GERBER (04/01/77)

decided: April 1, 1977.

ROCHESTER & PITTSBURGH COAL COMPANY AND OLD REPUBLIC INSURANCE COMPANY, INSURANCE CARRIER, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND WILLIAM H. GERBER, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of William H. Gerber v. Rochester & Pittsburgh Coal Co. and Commonwealth of Pennsylvania, No. A-70977.

COUNSEL

Joseph J. Lee, for petitioners.

Eugene A. Creany, for respondent, Gerber.

Sandra S. Christianson, Assistant Attorney General, for respondent, Department of Labor and Industry.

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

Author: Rogers

[ 29 Pa. Commw. Page 485]

This is an appeal by an employer, the Rochester & Pittsburgh Coal Company, and the Commonwealth of Pennsylvania from the Workmen's Compensation Appeal Board's order affirming a referee's award to the claimant, William H. Gerber, of payments for total disability due to coal worker's pneumoconiosis.

The claimant worked for the employer as an underground coal miner from 1929 until 1945 when he became a repairman of mining equipment, still working underground. From 1966 until his retirement on June 21, 1974, the claimant was head mechanic at the employer's training and service facility located above ground in the Borough of Indiana.

In 1972, the Legislature enacted amendments to The Pennsylvania Workmen's Compensation Act*fn1 which added to Section 302(c)'s*fn2 definition of injury certain occupational diseases, if disability or death is caused in whole or in part from exposure to the hazards of those occupational diseases after June 30, 1973. Included among such diseases is coal worker's pneumoconiosis.*fn3

The appellants agree that the claimant is totally disabled by pneumonconiosis. The issue is whether he was exposed to the hazard of coal worker's pneumoconiosis during the period after June 30, 1973 and until his retirement in June, 1974.

[ 29 Pa. Commw. Page 486]

The same issue was the subject of Workmen's Compensation Appeal Board and Klebick v. Commonwealth, 19 Pa. Commonwealth Ct. 499, 338 A.2d 758 (1975). There the claimant worked in the mines during only 17 days after June 30, 1973, and there we rejected the Commonwealth's argument that The Pennsylvania Workmen's Compensation Act requires "direct medical testimony of the relationship between the post June 30, 1973 exposure and the claimant's disability." 19 Pa. Commonwealth Ct. at 501, 338 A.2d at 760.

The appellants say that this case should be decided differently from Klebick because here there is a question as to whether the claimant was exposed to the hazard of coal worker's pneumoconiosis after June 30, 1973, since he then worked only above ground in the repair shop except during four trips underground lasting a total of 16 1/2 hours. However, the claimant's testimony was that there was coal dust in the repair shop raised by the cleaning of mining machinery and that he was exposed to coal dust during his four trips into the mines. Contrary to the appellants' ...


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