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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND JOHN DURICK v. REPUBLIC STEEL CORPORATION AND COMMONWEALTH PENNSYLVANIA. REPUBLIC STEEL CORPORATION (07/26/77)

decided: July 26, 1977.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND JOHN DURICK
v.
REPUBLIC STEEL CORPORATION AND COMMONWEALTH OF PENNSYLVANIA. REPUBLIC STEEL CORPORATION, APPELLANT. REPUBLIC STEEL CORPORATION, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD, JOHN DURICK AND COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS



Appeals from the Orders of the Workmen's Compensation Appeal Board in case of John Durick v. Republic Steel Corporation and Commonwealth of Pennsylvania, Nos. A-71014 and A-72040.

COUNSEL

Lenton L. Moyer, with him Ralph Davies, and Thomson, Rhodes & Grigsby, for appellant.

Benjamin L. Costello, with him Kenneth J. Yablonski, for appellee, Durick.

Mary Ellen Krober, Assistant Attorney General, for Commonwealth.

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

Author: Blatt

[ 31 Pa. Commw. Page 302]

Republic Steel Corporation (Republic) appeals here from two orders of the Workmen's Compensation Appeal Board (Board). The first order directed Republic to pay a portion of an award made to John Durick (claimant) by a referee for full disability due to coal worker's pneumoconiosis and also ordered a remand for further findings of fact. The second order followed the remand and required Republic to reimburse certain litigation costs to the claimant's union. Republic's appeals from these orders are herein consolidated.

The claimant was employed in the bituminous mining industry of Pennsylvania for a period of 37 years, during the last 24 by Republic. He left his job on March 9, 1974 and filed a claim petition on September

[ 31 Pa. Commw. Page 30327]

, 1974 under Section 108(q) of The Pennsylvania Workmen's Compensation Act*fn1 (Act) alleging that he had become totally disabled on August 15, 1974 from coal worker's pneumoconiosis as a result of being exposed to the hazard of coal dust. At the referee's hearings, the claimant testified personally and presented the deposition of an examining physician. The referee awarded compensation, finding that the claimant was totally disabled due to coal worker's pneumoconiosis and that this disability occurred on August 15, 1974. Both parties appealed this decision: Republic urging the claimant had not given it timely notice of his disability, and the claimant seeking reimbursement of the costs of the claim petition. The Board affirmed the referee's compensation order and ordered a remand for a finding of fact as to whether or not the contest in this case was reasonable. Pursuant to the remand order, the referee then held another hearing after which he assessed Republic the cost of the claimant's doctor's deposition as well as the costs of reproducing that deposition, and further ordered that these costs be reimbursed to the claimant's union. The Board affirmed this order and these appeals by Republic followed.

In a workmen's compensation case where the party with the burden of proof prevailed below, review by this Court is limited to a determination of whether or not the findings of fact are consistent with each other and the conclusions of law and whether or not they can be sustained without a capricious disregard of competent evidence, leaving to the referee the resolution of conflicts in the testimony and questions of credibility. McIntosh v. Workmen's Compensation Appeal Board, 25 Pa. Commonwealth Ct. 311, 360 A.2d 273 (1976). Republic argues here that (1) the claimant is ineligible for compensation because he failed to

[ 31 Pa. Commw. Page 304]

    give Republic notice of his disability within the period provided by the Act and (2) the Board erred as a matter of law in directing Republic to reimburse ...


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