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COMMONWEALTH PENNSYLVANIA v. ERNEST MERRILL (10/03/78)

decided: October 3, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
ERNEST MERRILL, APPELLEE



Appeal from the Order of the Court of Common Pleas of Fayette County in case of Ernest Merrill v. Commonwealth of Pennsylvania, No. 738 September Term, 1974.

COUNSEL

Sandra S. Christianson, Assistant Attorney General, with her David A. Ody, Assistant Attorney General, for appellant.

C. Jerome Moschetta, for appellee.

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

Author: Blatt

[ 38 Pa. Commw. Page 59]

The Commonwealth of Pennsylvania appeals from an order of the Court of Common Pleas of Fayette County upholding an award of total disability benefits under The Pennsylvania Occupational Disease Act*fn1 (Act) to Ernest Merrill (claimant) by the Workmen's Compensation Appeal Board (Board).

The claimant had worked in the mines for approximately sixteen years until 1955 when both his legs were amputated because of severe gangrene. The record is not clear as to whether or not a claim was ever filed regarding this injury under The Pennsylvania Workmen's

[ 38 Pa. Commw. Page 60]

Compensation Act as then in effect.*fn2 But, in October of 1973, a claim petition was filed under Section 301(i), 71 P.S. ยง 1401(i), of the Occupational Disease Act and the claimant was granted benefits by a referee on the basis of total disability due to coal worker's pneumoconiosis. The Commonwealth appealed to the Board and argued that the referee's findings of fact and conclusions of law were not supported by the weight of the evidence. The Board dismissed the appeal, and the lower court affirmed the Board's decision. This appeal followed.

The Commonwealth argues that the claimant's medical evidence was legally insufficient to establish that he was totally disabled because of a compensable, as distinguished from a non-compensable, pulmonary disease.*fn3 The claimant argues that the evidence was legally sufficient and alternatively argues that this issue may not be considered by us because the Commonwealth failed to raise it below before the referee or in its appeal to the Board. The thrust of the Commonwealth's argument appears to be merely that the claimant was precluded from receiving total disability benefits as the result of an occupational disease because he was already totally disabled due to his 1955 double leg amputation,*fn4 and we find no record of any

[ 38 Pa. Commw. Page 61]

    objection concerning the issue of the "non-compensability" of the pulmonary disease upon which the award was based. That issue, therefore, is not before us. United States Steel Corporation v. Simon, 9 Pa. Commonwealth Ct. 281, 305 A.2d 913 (1973).

The only issue to be decided here is whether or not the claimant's pre-existing disability, his leg amputations, precluded him as a matter of law from being considered as having been totally disabled by a subsequent occupational disease which in and of itself constituted a total disability. Our Superior Court has held that when there may be two distinct causes of a claimant's total disability, i.e. where either cause alone ...


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