Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph Garnic v. Jones & Laughlin Steel Corp. and Commonwealth of Pennsylvania, No. A-72172.
Ronald Ganassi, with him Will & Keisling, for petitioner.
Sandra S. Christianson, Assistant Attorney General, for respondents.
Judges Rogers, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 41 Pa. Commw. Page 243]
Jones & Laughlin Steel Corporation (Employer) appeals from an order of the Workmen's Compensation Appeal Board (Board) directing Employer to pay 50% of the workmen's compensation benefits awarded to Joseph Garnic (Claimant).
[ 41 Pa. Commw. Page 244]
Briefly, the referee found that (1) Claimant's last day of employment was September 6, 1974, (2) Claimant became disabled due to anthracosilicosis on June 27, 1974 and (3) Claimant became permanently and totally disabled due to anthracosilicosis on September 6, 1974.
Section 305.1 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by the Act of December 6, 1972, P.L. 1627, 77 P.S. § 411.1, provides that if a claimant's disability occurred between September 1, 1973, and June 30, 1974, the employer shall pay 25% of the benefits and the Commonwealth 75% thereof, but if the disability begins between September 1, 1974, and June 30, 1975, the employer and the Commonwealth shall each pay 50% of the benefits. The narrow issue presented here is when did Claimant's disability "occur" or "begin" for the purpose of determining the proportionate share of Claimant's benefits which would be Employer's responsibility. Employer contends that that date should be June 27, 1974, while the Commonwealth contends that the date should be as determined by the referee and Board.
In Pekorofsky v. Glen Alden Coal Co., 171 Pa. Superior Ct. 97, 89 A.2d 890 (1952), it was held that the Commonwealth's proportionate share of workmen's compensation benefits should be ascertained at the time the employer's duty to pay compensation comes into existence and not when liability for payment is fixed. The Court went on to say that the liability of an employer is fixed as of the date of last exposure, while the duty to make payments and the amount thereof becomes fixed upon the date when disability occurs.
In Airco Speer Carbon v. Workmen's Compensation Appeal Board, 38 Pa. Commonwealth Ct. 274, 392 A.2d 360 (1978), we held on somewhat similar facts
[ 41 Pa. Commw. Page 245]
that the date of disability for the purpose of determining when the claimant had to give notice of his disability to his employer was the date the claimant last worked. In that case the claimant was advised by his physician in June of 1973 that he was totally disabled from pneumoconiosis, but he ...