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FOSECO v. COMMONWEALTH PENNSYLVANIA (04/06/79)

decided: April 6, 1979.

FOSECO, INC. AND HARTFORD INSURANCE GROUP, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND GILBERT I. JORDAN, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Gilbert I. Jordan v. Foseco, Inc., No. A-72946.

COUNSEL

Fred C. Trenor, with him Meyer, Darragh, Buckler, Bebenek & Eck, for petitioner.

Anthony J. Kovach, with him Kovach & Kovach, for respondent.

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

Author: Crumlish

[ 41 Pa. Commw. Page 521]

Foseco, Inc. (Employer) and its insurance carrier appeal a decision of the Workmen's Compensation Appeal Board (Board) upholding a referee's award of benefits to Gilbert I. Jordan (Claimant).

Claimant was awarded benefits for permanent and total disability resulting from silicosis, an occupational disease set forth in Section 108(k) of The Pennsylvania Workmen's Compensation Act (Act).*fn1 The award of benefits is grounded in Section 301(c)(2) of the Act, 77 P.S. ยง 411(2), which permits recovery for a disability which results in whole or in part from

[ 41 Pa. Commw. Page 522]

    the employee's exposure in the course of his employment to the hazard of an occupational disease after June 30, 1973.*fn2

Claimant worked in Employer's and Employer's predecessor's refractory from October 23, 1931 to October 15, 1973, in various capacities including brickmaker, dyemaker and maintenance mechanic. The referee heard testimony that silica sand was a component of the bricks Claimant made and the molds Claimant ground; that Claimant worked under dusty conditions; that silica was present on the site subsequent to June 30, 1973; and that Claimant was exposed to the silica subsequent to June 30, 1973. Claimant introduced medical testimony through Dr. J. D. Silverman to the effect that Claimant had suffered total and permanent disability as a result of silicosis which was caused by his total and cumulative exposure to silica and the referee so found, dating the compensable disability from September 18, 1974.

Employer does not dispute Claimant's disability but attributes it to a total and permanent heart disability that is not causally related to his employment and, hence, non-compensable under the Act. At the hearing, Employer introduced medical evidence that Claimant's disability was caused by a debilitating heart attack suffered on October 16, 1973, as a result

[ 41 Pa. Commw. Page 523]

    of which he could no longer work and for which he received Social Security*fn3 and union disability benefits. The referee did not make any findings as to the effect of ...


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