Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph Cehelnik, Deceased, Mildred Cehelnik, Widow, v. Bethlehem Mines Corporation and Commonwealth of Pennsylvania, No. A-72628.
Sandra Christianson, Assistant Attorney General, with her Mary Ellen Krober, Assistant Attorney General, for petitioner.
Blair V. Pawlowski and John J. Bagnato, with them Spence, Custer, Saylor, Wolfe & Rose, and James N. Diefenderfer, for respondents.
Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.
[ 38 Pa. Commw. Page 454]
The Commonwealth appeals here from a Workmen's Compensation Appeal Board (Board) award of death benefits to Mildred Cehelnik, the widow of an employee of the Bethlehem Steel Corporation (employer) who died on February 16, 1976 as a result of coal worker's pneumoconiosis. The referee and the Board apportioned the liability for the award at twenty-five percent (25%) for the Commonwealth and seventy-five percent (75%), for the employer. The award was made and apportioned pursuant to Section 305.1 of The Pennsylvania Workmen's Compensation Act (Act),*fn1 which provides:
Any compensation payable under this act for silicosis, anthraco-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
[ 38 Pa. Commw. Page 4551]
, 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 prescribed in the rules and regulations of the department. (Emphasis added.)
The Commonwealth argues that it was not liable for any amount because its liability arises on the date that disability was established. In this case no disability was established prior to the employee's death, and the Commonwealth argues that it is thus relieved from any liability whatever, even though the employer may be liable.
The Commonwealth cites Workmen's Compensation Appeal Board v. Beltrami Enterprises, Inc., 29 Pa. Commonwealth Ct. 134, 370 A.2d 1223 (1977), wherein we held that the apportionment of payments between the Commonwealth and an employer under Section 305.1 of the Act for the death claim of a widow, whose husband was adjudged to have become totally disabled from anthracosilicosis and to have died as a result therefrom, is determined by the date of disability, not by the date of death. We have here, however, a different situation, wherein there has been no adjudication of disability prior to the death of the employee. As a matter of fact, the record reveals that the employee here had not even sought medical
[ 38 Pa. Commw. Page 456]
attention until the date of his death. It is uncontroverted, however, that he did die as a result of pneumoconiosis and it is therefore logical to assume that at least at the time of his death he was disabled due to pneumoconiosis. As counsel for Bethlehem Mines has said, "[d]eath is total disability," and we believe it was reasonable here to equate the date of disability with the date of death. Obviously, the claimant was disabled ...