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HARBISON-WALKER AND CONTINENTAL INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (02/23/79)

decided: February 23, 1979.

HARBISON-WALKER AND CONTINENTAL INSURANCE COMPANY, INSURANCE CARRIER, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND RUSSELL VARNER, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Russell Varner v. Harbison-Walker, No. A-72659.

COUNSEL

Raymond F. Keisling, with him Will & Keisling, for petitioners.

Samuel R. DiFrancesco, Sr., for respondents.

Judges Mencer, DiSalle and Craig, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 40 Pa. Commw. Page 557]

Harbison-Walker (Harbison) and its insurance carrier, Continental Insurance Company, have appealed an order of the Workmen's Compensation Appeal Board (Board) granting temporary, total disability benefits to Russell Varner because of silicosis, pursuant to the occupational-disease provisions of The Pennsylvania Workmen's Compensation Act (Workmen's Compensation Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq. We affirm.

Claimant was employed by Harbison from January 23, 1942 to February 1, 1976 in several positions, all of which involved exposure to a considerable amount

[ 40 Pa. Commw. Page 558]

    of dust containing silicon dioxide. After a medical examination on January 16, 1975, claimant was found to be totally and permanently disabled because of silicosis caused by his employment. Despite this diagnosis, however, claimant continued working at Harbison until February 1, 1976.

After giving proper notice to Harbison of his disability, claimant filed a petition, dated October 14, 1975, for total disability benefits under The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq. Subsequently, claimant amended his petition to bring it under Section 108(k) of the Workmen's Compensation Act, added by Section 1 of the Act of October 17, 1972, P.L. 930, 77 P.S. § 27.1(k). A referee found that claimant was totally disabled as of February 1, 1976 and awarded compensation at the rate of $187 per week, according to the compensation schedule in effect on the date of claimant's disability.

The only issue raised by Harbison on this appeal is the rate of compensation paid claimant. Harbison argues that, since claimant was found to be totally disabled from a medical standpoint on January 16, 1975, he should be compensated based on the applicable 1975 disability schedule instead of the 1976 schedule utilized by the referee. It is well settled, however, that disability within the meaning of the Workmen's Compensation Act encompasses more than mere medical disability. Many factors go into its makeup, including a claimant's loss or diminution in earning power. See Borough of Catawissa v. Shultz, 9 Pa. Commonwealth Ct. 546, 308 A.2d 633 (1973); Lackman v. F.W. Woolworth Co., 205 Pa. Superior Ct. 129, 208 A.2d 33 (1965). As stated in Unora v. Glen Alden Coal Co., 377 Pa. 7, 12, 104 A.2d 104, 107 (1954),

[t]otal disability, however, in the nomenclature of workmen's compensation ...


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