Appeal from the Order of the Workmen's Compensation Appeal Board in case of Gus H. Rager v. North American Coal Corp. and Commonwealth of Pennsylvania, No. A-72532.
George H. Thompson, with him Paul E. Sutter, and Hirsch, Weise & Tillman, for petitioners.
Blair V. Pawlowski, for respondent, Rager.
Sandra S. Christianson, Assistant Attorney General, for Commonwealth.
Judges Crumlish, Jr., Wilkinson, Jr. and Craig, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 39 Pa. Commw. Page 483]
The North American Coal Corporation (Employer), its insurance carrier, and the Commonwealth of Pennsylvania appeal a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's compensation award to Gus H. Rager (Claimant).
[ 39 Pa. Commw. Page 484]
The narrow issue is whether Claimant has proved by substantial evidence that his total disability resulted in whole or in part from exposure to coal dust subsequent to June 30, 1973 as required by Section 301(c)(2) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(2).*fn1
There is no dispute that Claimant is totally and permanently disabled by coal worker's pneumoconiosis contracted as a result of his continuing exposure to coal dust, having worked in the coal industry for 43 years. That career ended on July 6, 1973, after having worked for Employer for approximately four years. The controversy arises because Claimant visited his physician on May 10, 1973 and it was the physician's opinion at that time (which was not communicated to Claimant until July 17, 1973) that the deteriorating effects of the lung disease had already become totally disabling, notwithstanding the fact that Claimant was able to continue working from May 10, 1973 to July 6, 1973.*fn2
[ 39 Pa. Commw. Page 485]
On the basis of all the evidence presented, the referee concluded that Claimant was totally and permanently disabled on July 7, 1973 (here, the date of loss of earning power) as a result of his occupationally acquired lung ...