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MATHIES COAL COMPANY v. COMMONWEALTH PENNSYLVANIA (01/23/79)

decided: January 23, 1979.

MATHIES COAL COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND FRANK P. KOZLEVCHAR, RESPONDENTS. CONSOLIDATION COAL COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND STEVE JINGLESKI, RESPONDENTS. CONSOLIDATION COAL COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND WILLIAM BONKOVICH, RESPONDENTS. CONSOLIDATION COAL COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND DOMINICK RIGONE, RESPONDENTS. MATHIES COAL COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JOSEPH TURKI, RESPONDENTS. MATHIES COAL COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ROBERT W. SEIBERT, RESPONDENTS. PITTSBURGH COAL COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JOSEPH ASTORINO, RESPONDENTS



Appeals in cases of Frank P. Kozlevchar v. Mathies Coal Company and Commonwealth of Pennsylvania, No. A-72699; Steve Jingleski v. Consolidation Coal Company and Commonwealth of Pennsylvania, No. A-71752; William Bonkovich v. Consolidation Coal Company and Commonwealth of Pennsylvania, No. A-72906; Dominick Rigone v. Consolidation Coal Company and Commonwealth of Pennsylvania, No. A-73269; Joseph Turki v. Mathies Coal Company and Commonwealth of Pennsylvania, No. A-72278; Robert W. Seibert and Mathies Coal Company and Commonwealth of Pennsylvania, No. A-73782; and Joseph Astorino v. Pittsburgh Coal Co. and Commonwealth of Pennsylvania, No. A-71704.

COUNSEL

Edward C. Schmidt and Daniel L. Fassio, with them Andrew Rose and Rose, Schmidt, Dixon, Hasley & Whyte, for appellants.

Laurence W. Dague, Assistant Attorney General, and Benjamin L. Costello, for appellees.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 40 Pa. Commw. Page 122]

All of the individual appellees (Claimants) herein are retired coal miners who have been awarded workmen's

[ 40 Pa. Commw. Page 123]

    compensation disability benefits pursuant to Section 108(q) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 27.1(q), which provides benefits for those individuals who have become totally and permanently disabled as a result of anthracosilicosis (coal worker's pneumoconiosis).

Although the factual backgrounds for each individual Claimant are necessarily varied, we believe the issues presented are virtually identical in all cases and therefore have combined them for the purpose of this opinion.

Each Claimant had been employed in various capacities, both above and below ground, by various coal mining companies for periods varying from 20 to 45 years prior to the onset of their present disability. In virtually every case the Claimant had been medically diagnosed as having coal worker's pneumoconiosis prior to his giving notice to the companies involved. In some cases, the period between the Claimants' retirement for health reasons and their notification to the company that they were applying for benefits exceeded the 120 day statutory period as provided in Section 311 of the Act, 77 P.S. § 631.*fn1

However, in no instance did the period between the Claimants' diagnosis and their giving of notice exceed that statutory period.

[ 40 Pa. Commw. Page 124]

In all but one of the cases the Claimant had either applied for or was presently receiving Federal Black Lung Benefits. It is also apparent that all Claimants were employed by the Coal Companies after June 30, 1973. The periods of their post June 30th employment varied from 6 days to approximately one year.

The four issues collectively presented by these appeals are as follows: (1) whether an application for Federal Black Lung Benefits indicates knowledge requiring notice pursuant to Section 311 of the Act, 77 P.S. § 631, or whether the requisite knowledge properly arose upon diagnosis of the disability by a physician; (2) whether the appellants (Coal Companies) involved rebutted the presumption of exposure to an occupational disease hazard after June 30, 1973; (3) whether the referee's findings of hazards after June 30, 1973, were based upon sufficient competent evidence; and (4) whether the Coal Companies' constitutional rights of due process and equal protection under the law have been abridged by the assessment of 10 percent interest penalties, solely against the Coal Companies. In each case the Workmen's Compensation Appeal Board (Board) resolved these issues, in favor of the Claimants. We affirm.

It is well settled that in a workmen's compensation case where the party with the burden of proof prevailed below, review by this Court is limited to a determination of whether the findings of fact are consistent with each other and the conclusions of law and whether they can be sustained without a capricious disregard of competent evidence, leaving to the referee the resolution of conflicts in testimony and questions of credibility. Jones ...


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