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GATEWAY COAL COMPANY v. COMMONWEALTH PENNSYLVANIA (07/11/78)

decided: July 11, 1978.

GATEWAY COAL COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, ALFRED RICCIUTI AND COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Alfred Ricciuti v. Gateway Coal Company and Commonwealth of Pennsylvania, No. A-71641.

COUNSEL

Raymond F. Keisling, with him Will & Keisling, for petitioner.

Sandra S. Christianson, Assistant Attorney General, with her Van P. Braswell, Assistant Attorney General, for respondent, Commonwealth.

Judges Mencer, Rogers and DiSalle, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 36 Pa. Commw. Page 609]

Gateway Coal Company (Gateway) appeals from a decision of the Workmen's Compensation Appeal Board (Board) requiring it to pay 50 percent of the compensation due to Alfred Ricciuti (claimant) under The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq., the remaining 50 percent to be paid by the Commonwealth of Pennsylvania. Gateway contends that the evidence presented compels the conclusion that claimant became totally disabled prior to July 1, 1974 and that under Section 305.1 of the Act, added by Section 2 of the Act of December 6, 1972, P.L. 1627, 77 P.S. § 411.1, the Commonwealth should be required to pay 75 percent of the compensation due. We cannot agree, and we affirm the order of the Board.

Claimant was employed by various coal companies from 1936 until 1974. He was employed by Gateway from 1963 until January 3, 1974. According to the claimant, for approximately two years prior to his last day of work, he had been experiencing difficulty in breathing, which eventually became so severe that claimant felt compelled to retire. He therefore terminated

[ 36 Pa. Commw. Page 610]

    his employment as of January 3, 1974. In April 1974, claimant consulted Dr. A. Carl Walker, who, again according to the claimant, diagnosed claimant's difficulty as a heart disease. On September 6, 1974, claimant was examined by another doctor, Dr. C. Charles Iannuzzi. In a letter to claimant's attorney, Dr. Iannuzzi concluded that "Alfred Ricciuti is totally and permanently disabled due to coal worker's pneumoconiosis and that this condition is the result of his exposure to dusts while working in the coal mines."

In October 1974, claimant filed his claim petition against Gateway and the Commonwealth, alleging that he became totally disabled due to anthracosilicosis and/or coal worker's pneumoconiosis as of September 6, 1974. At the request of the Commonwealth, claimant was again examined by Dr. Walker on December 17, 1974. In his subsequent answers to interrogatories, Dr. Walker apparently changed his opinion about the nature of claimant's difficulty and concluded that claimant was totally disabled due to anthracosilicosis. Dr. Walker further stated in his interrogatories that, in his opinion, claimant's condition on his last day of work had been the same as on December 17, 1974, i.e., totally disabled due to anthracosilicosis.

Hearings were held before a referee at which the claimant testified and the letter of Dr. Iannuzzi and the interrogatories of Dr. Walker were introduced into evidence without objection. Neither doctor testified in person. Based on this evidence, the referee found that claimant became permanently and totally disabled due to anthracosilicosis on September 6, 1974, the date of claimant's examination by Dr. Iannuzzi. Since this date fell between July 1, 1974 and June 30, 1975, the referee apportioned liability between Gateway and the Commonwealth on a 50-50 basis, pursuant to Section 305.1 of the Act. The Board affirmed, and this appeal followed.

[ 36 Pa. Commw. Page ...


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