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SWANK REFRACTORIES AND LIBERTY MUTUAL INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (05/26/77)

decided: May 26, 1977.

SWANK REFRACTORIES AND LIBERTY MUTUAL INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND WALLACE SHAW RUFFANER, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Wallace Shaw Ruffaner v. Swank Refractories, No. A-71186.

COUNSEL

Thomas J. Ferris, for appellants.

Carl A. Belin, Jr., with him Belin, Belin & Naddeo, for appellee, Ruffaner.

David A. Ody, Assistant Attorney General, with him Mary Ellen Krober, Assistant Attorney General, for appellee, Commonwealth.

Judges Crumlish, Jr., Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson, Jr.

[ 30 Pa. Commw. Page 314]

Appellants appeal an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of total disability benefits to the claimant pursuant to Section 108(k) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 27.1(k). We affirm.

Claimant was employed by appellant-employer for approximately 46 years as a green brick wheeler, whose duties included placing brick into a dry press, taking the brick into kilns, scraping excess sand off the brick and stacking the brick inside the kilns. On February 15, 1974, he became sick, notified his foreman that he was reporting off work, and went home. He has not worked since. On February 17, 1974, he

[ 30 Pa. Commw. Page 315]

    entered a hospital which rendered a final diagnosis (upon his transfer to another hospital approximately two weeks later) of congestive heart failure; arteriosclerotic heart disease with marked tachycardia, and possible intra-abdominal pathology. The second hospital made a diagnosis of a pulmonary embolism left lung, a left-sided pleural effusion, respiratory insufficiency and pulmonary emphysema. Claimant was examined by a physician on June 10, 1974, who concluded that claimant was totally and permanently disabled for work of any type because of pneumoconiosis, anthracosilicotic type, stage II, and pulmonary emphysema. On July 11, 1974, claimant sent appellant-employer notice that he had become totally disabled as a result of silicosis as of February 15, 1974, and, on July 12, 1974, claimant filed a claim petition alleging total disability as a result of anthracosilicosis caused by employment having a silica hazard.*fn1

A hearing was conducted on April 18, 1975. Claimant testified that the performance of his tasks caused an extreme amount of dust to accumulate in the area in which he worked (a 50-by-35 foot roofed enclosure) and that the dust conditions had been generally the same throughout his work experience with appellant-employer. He testified that the dust affected his breathing and caused him to cough and spit phlegm in which the dust was contained.

Upon cross-examination, appellants offered an amendment to their answer that timely and proper notice of the alleged disability was not given and that the claim petition was not timely filed. Appellants then offered medical reports of the two hospitals in which claimant had been ...


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