Appeal from the Order of the Workmen's Compensation Appeal Board in case of George F. Paugh v. Republic Steel Corporation and Commonwealth of Pennsylvania, No. A-72080.
Edward A. McFarland, with him Ralph A. Davies, and Thomson, Rhodes & Grigsby, for petitioner.
Laurence W. Dague, Assistant Attorney General, with him James N. Diefenderfer, for respondents.
Judges Rogers, Blatt and DiSalle, sitting as a panel of three. Opinion by Judge Blatt.
[ 35 Pa. Commw. Page 180]
Republic Steel Corporation (employer) appeals here from an order of the Workmen's Compensation Appeal Board (Board) which modified a referee's allocation of liability between the employer and the Commonwealth of Pennsylvania for the payment of workmen's compensation benefits to George F. Paugh (claimant).
On September 12, 1974, the claimant had filed a petition claiming compensation for total disability resulting from coal worker's pneumoconiosis. After several hearings, the referee found that the claimant had become totally disabled due to coal worker's pneumoconiosis and awarded benefits, allocating 75% of the liability to the Commonwealth and 25% to the employer. On appeal, the Board affirmed the referee's decision but reallocated the liability for compensation, assessing the cost equally on both parties. The employer has appealed the reallocation to this Court.
[ 35 Pa. Commw. Page 181]
Section 305.1 of The Pennsylvania Workmen's Compensation Act,*fn1 77 P.S. § 411.1, concerns the allocation of liability for the payment of disability and it provides:
Any compensation payable under this act for silicosis, anthroco-silicosis or coal-worker's pneumoconiosis as defined in section 108(q) for disability occurring on or after July 1, 1973 or for death resulting therefrom shall be paid as follows: if the disability begins between July 1, 1973 and June 30, 1974, inclusive, the employer shall pay twenty-five per centum and the Commonwealth seventy-five per centum; if the disability begins between July 1, 1974, and June 30, 1975, inclusive, the employer shall pay fifty per centum and the Commonwealth fifty per centum ; if the disability begins between July 1, 1975 and June 30, 1976, inclusive, the employer shall pay seventy-five per centum and the Commonwealth twenty-five per centum; and if the disability begins on or after July 1, 1976, all compensation shall be payable by the employer. The procedures for payment of compensation in such cases shall be as prescribed in the rules and regulations of the department. (Emphasis added.)
The referee found as a fact that the claimant had become totally disabled due to coal worker's pneumoconiosis on August 3, 1974. Because August 3, 1974 falls within the period between July 1, 1974 and June 30, 1975, the Board correctly followed Section 305.1 in reallocating the liability percentages between the employer and the Commonwealth to 50% each. The employer argues however that the referee's finding
[ 35 Pa. Commw. Page 182]
that the claimant became totally disabled on August 3, 1974 is not ...