Appeal from the Order of the Workmen's Compensation Appeal Board in case of Nicholas Birch v. Jones & Laughlin Steel Corporation and Commonwealth of Pennsylvania, No. A-71462.
Raymond F. Keisling, with him Will & Keisling, for petitioner.
Sandra S. Christianson, Assistant Attorney General, with her Benjamin L. Costello, Kenneth J. Yablonski, and James N. Diefenderfer, for respondents.
Judges Crumlish, Jr. and Blatt, sitting as a panel of two. Opinion by Judge Crumlish, Jr.
[ 34 Pa. Commw. Page 203]
Jones & Laughlin Steel Corporation (J & L) has appealed from a decision of the Workmen's Compensation Appeal Board (Board) affirming a referee's award of benefits to its employe, Nicholas Birch (Claimant). The issue is whether the record supports the referee's finding of exposure to an occupational disease hazard after June 30, 1973. We hold that it does, and affirm.
Section 301(c)(2) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(2), includes within the definition of compensable injury those occupational diseases enumerated in Section 108, 77 P.S. § 27.1, when an employe's disability arises in whole or in part from his exposure to the hazard of the occupational disease after June 30, 1973. Section 108(q)*fn1 names coal worker's pneumoconiosis, anthraco-silicosis, and silicosis as occupational diseases.
Claimant was employed in the coal mining industry from 1923 to January 31, 1974, working the last 27 years for Jones & Laughlin. For the first 40 years
[ 34 Pa. Commw. Page 204]
he worked at various jobs underground in the mines; during the last 11 years, including the seven months subsequent to June 30, 1973, he worked as a dockman, whose duties involved him in the loading of coal into barges.
The referee found that Claimant had been permanently and totally disabled by anthraco-silicosis, and that the disability had resulted in whole or in part from his exposure to the hazard of that occupational disease after June 30, 1973, while he was employed by Jones and Laughlin. J & L attacks the finding of post-June 30, 1973 exposure on the ground that during that period and for approximately 10 years prior thereto, Claimant was employed aboveground as a dockman, and not as an underground miner, and that the only evidence of record on the issue of Claimant's exposure to the hazard subsequent to June 30, 1973 was the statement of J & L's physician, Dr. Anderson, that Claimant's work as a dockman after that date did not contribute to his disability. We disagree with J & L's characterization of the evidence.
In Workmen's Compensation Appeal Board v. Commonwealth (Klebick), 19 Pa. Commonwealth Ct. 499, 338 A.2d 758 (1975), we addressed the issue of the degree of proof necessary to show that disability resulted in whole or in part from exposure to the hazard of an occupational disease subsequent to June 30, 1973. There we held that where a claimant had worked underground in coal mines for 37 years ending July 17, 1973, and the medical evidence indicated that his disability was due to cumulative exposure during that period, the claimant had established his entitlement to benefits, because he had shown that his post-June 30, 1973 exposure, even though lasting only 17 ...