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COMMONWEALTH PENNSYLVANIA AND DEPARTMENT LABOR AND INDUSTRY v. COMMONWEALTH PENNSYLVANIA (11/27/78)

November 27, 1978

COMMONWEALTH OF PENNSYLVANIA AND DEPARTMENT OF LABOR AND INDUSTRY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, FRANCIS B. CAMPBELL AND CAMBRIA MILLS COAL CO., INC., RESPONDENTS



No. 2065 C.D. 1977

COUNSEL

Sandra S. Christianson, Assistant Attorney General, with her Mary Ellen Krober, Assistant Attorney General, for petitioners.

Joseph J. Lee, with him James N. Diefenderfer, for respondents.

Before Honorable Glenn E. Mencer, Judge Honorable Genevieve Blatt, Judge Honorable David W. Craig, Judge

Author: Blatt

[ 38 Pa. Commw. Page 589]

JUDGE BLATT

The Department of Labor and Industry (Commonwealth) appeals here from the decision of the Workmen's Compensation Appeal Board (Board) that it pay fifty percent of a compensation award granted to Francis B. Campbell (claimant).

The claimant filed a petition for compensation under the provisions of The Pennsylvania Workmen's Compensation Act (Act)*fn1 on October 10, 1974, alleging that he became totally disabled as a result of his exposure to coal dust while employed by Cambria Mills Coal Co., Inc. (employer) and also alleging that this disability began as of August 23, 1974, which was the date when he was examined by his physician. The claimant was subsequently examined by two other physicians at the request of the employer and also by an impartial physician appointed by the referee. On the basis of the medical testimony of the impartial

[ 38 Pa. Commw. Page 590]

    physician, offered at the hearings, the referee awarded compensation for partial disability to the claimant beginning December 8, 1975, the date of the medical report submitted by the impartial physician. The referee assessed liability for payment of the compensation against the Commonwealth and the employer in the proportion of 75% payable by the employer and 25% payable by the Commonwealth pursuant to Section 305.1 of the Act, 77 P.S. ยง 411.1.*fn2

The employer appealed from this decision to the Board, arguing that the referee had erred by making inconsistent findings of fact and that the allocation of liability between the Commonwealth and the employer should have been equal, each contributing fifty percent. The relevant findings of fact are as follows:

"16. That your referee finds as a fact that because of the partial disability and limitations placed upon the claimant by the doctor as well as his education, training, experience, etc., ...


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