November 27, 1978
COMMONWEALTH OF PENNSYLVANIA AND DEPARTMENT OF LABOR AND INDUSTRY, PETITIONERS
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, FRANCIS B. CAMPBELL AND CAMBRIA MILLS COAL CO., INC., RESPONDENTS
No. 2065 C.D. 1977
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
[ 38 Pa. Commw. Page 589]
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. § 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., the claimant's partial disability has resulted in a
[ 38 Pa. Commw. Page 591]
total loss of earning power since December 8, 1975.
"17. That the claimant first learned the cause of his disability on October 1, 1974, and on that same date proper notice was given to the defendant and the Commonwealth of Pennsylvania, Department of Labor and Industry."
The Board, however, sustained the employer's appeal finding that the "[claimant] knew of his disability on or about October 1, 1974." It reallocated liability, therefore, holding that "under Section 305.1, liability of the employer and the Commonwealth are equal." The Commonwealth has appealed this reallocation of liability.
Section 427 of the Act, 77 P.S. § 1710.44, which limits our scope of review in workmen's compensation appeals is that defined in Section 44 of the Administrative Agency Law,*fn3 71 P.S. § 1710.44 which limits our scope of review here to a determination of whether or not an error of law was committed, constitutional rights were violated, or whether or not findings of fact are unsupported by substantial evidence.
The Commonwealth argues that the Board erred by using the date on which the claimant first knew of his disability to determine the allocation of liability instead of the date on which disability was established. Although the Board's opinion is not entirely clear, we believe that the Board's change in the apportionment of liability essentially implies that the Board believed the date of disability to be on or about October 1, 1974 when he informed his employer that he was disabled pursuant to being so advised by his physician. It should be noted, however, that the facts of this case differ from those before us in
[ 38 Pa. Commw. Page 592]
will pay compensation at the rate of 50 percent of $73.34 weekly (i.e., $36.67 per week) to continue within the limitations of The Pennsylvania Workmen's Compensation Act. The Department of Labor and Industry, Bureau of Occupational Injury and Disease Compensation will pay $225.00 to Samuel M. Bradley, M.D. for medical services rendered and compensation at the rate of 50 percent of $73.34 weekly (i.e., $36.67 per week) to continue within the limitations of The Pennsylvania Workmen's Compensation Act. The Cambria Mills Coal Co., Inc. and the Commonwealth will both make any back payments due and owing. Accrued compensation shall bear the statutory interest rate of ten percent.
Genevieve Blatt, Judge