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CONSOLIDATION COAL COMPANY v. COMMONWEALTH PENNSYLVANIA (09/05/78)

decided: September 5, 1978.

CONSOLIDATION COAL COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND BESSIE L. STAJDUHAR, RESPONDENTS. CONSOLIDATION COAL COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND GEORGE STAJDUHAR, RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board in cases of Bessie Stajduhar, widow of George Stajduhar v. Consolidation Coal Company and Commonwealth of Pennsylvania, and George Stajduhar v. Consolidation Coal Company and Commonwealth of Pennsylvania, Nos. A-72035 and A-72036.

COUNSEL

Andrew Rose, with him Edward C. Schmidt, and Rose, Schmidt, Dixon, Hasley & Whyte, for appellant.

Benjamin L. Costello, with him Mary Ellen Krober, Assistant Attorney General, and James N. Diefenderfer, for appellees.

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

Author: Blatt

[ 37 Pa. Commw. Page 414]

Two decisions of the Workmen's Compensation Appeal Board (Board) have been consolidated for argument here, one awarding death benefits to Bessie L. Stajduhar, widow of George Stajduhar (claimant), and the other suspending disability benefits to the claimant for the period following the filing of his petition until the time of his death.

The claimant filed a petition on October 18, 1974 seeking disability benefits for anthracosilicosis pursuant to Section 108(q) of The Pennsylvania Workmen's Compensation Act*fn1 (Act), 77 P.S. § 27.1(q). Prior to the rendering of a referee's decision, the claimant died, and his widow filed a separate claim petition alleging that his death was due to anthracosilicosis. The two claims were merged for purposes of hearing, but the referee issued two separate decisions.

With respect to the claim for lifetime benefits, the referee found that the claimant "suffered residual disability due to anthracosilicosis," but he also found "that the aforementioned residual disability due to anthracosilicosis was not in itself totally and permanently disabling to the claimant nor would said residual disability in itself disabled [sic] the claimant from performing his regular occupation of timberman, in the absence of the carcinoma which eventually led to

[ 37 Pa. Commw. Page 415]

    his demise." In addition, the referee made the following conclusions of law:

The claimant having failed to prove that his residual disability due to anthracosilicosis was disabling within the meaning of Sections 306(a) or 306(b) of the Act, as a matter of law must have his prayer for compensation denied.

The defendant having failed to successfully rebutt [sic] the presumption of the claimant's exposure in a hazardous occupation . . . the claimant is entitled to the benefits provided by the Act.

On the basis of these findings and conclusions of law, the referee "suspended" compensation as of August 8, 1974, but directed the Consolidation Coal Company (Consolidation), the claimant's employer, to pay certain transcript fees. On appeal by Consolidation, the Board reversed the referee's award of the transcript fees but affirmed the decision in all other respects. Consolidation has petitioned us to review this decision, docketed at No. 737 C.D. 1977, contending that the Board erred in suspending compensation after having found that the claimant was neither totally nor partially disabled from anthracosilicosis.

Our review of this decision has been complicated by the imprecise language of the referee's conclusions of law, and it is difficult to determine whether or not an "award" was actually made to the claimant. Nevertheless, we believe that by concluding that the claimant had failed to prove either a total disability within the meaning of Section 306(a) of the Act, 77 P.S. § 511, or a partial disability within the meaning of Section 306(b), 77 P.S. § 512, the referee could not, as a matter of law, have made an "award." Total and partial disability are the only forms of compensable disability recognized by the Act, and we are unable to locate any

[ 37 Pa. Commw. Page 416]

    statutory authority for the term "residual disability" used by the referee. Moreover, we believe that the referee clearly erred in concluding that the claimant was entitled to benefits because the defendant-employer had failed ...


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