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ERNEST MONTGOMERY v. COMMONWEALTH PENNSYLVANIA (04/20/79)

decided: April 20, 1979.

ERNEST MONTGOMERY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND COLT INDUSTRIES, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Ernest Montgomery v. Colt Industries, No. A-73594.

COUNSEL

Edwin H. Beachler, with him William R. Caroselli, and McArdle, Caroselli, Spagnolli & Beachler, for petitioner.

Joseph A. Fricker, Jr., for respondents.

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

Author: Wilkinson

[ 42 Pa. Commw. Page 144]

This is an appeal from an order of the Workmen's Compensation Appeal Board (Board) reversing a referee's decision in which the claim petition filed by petitioner (claimant) was denied but an order of suspension of compensation was entered along with reasonable costs of prosecution to claimant. We affirm.

Claimant's exposure, over the course of more than 20 years, to a silica hazard while working in employer's steel furnaces as a bricklayer's helper and ladel liner is undisputed. At no time was claimant informed by a physician that he suffered any disability as a result of his exposure to such dust.

It is further undisputed that claimant is totally disabled as a result of heart disease. A diagnosis of arteriosclerotic heart disease and coronary insufficiency was made in September 1973 when claimant consulted a physician in response to chest pains. Between September 18, 1973 and February 10, 1974 claimant was disabled by and received sick and accident benefits from employer for his heart disease. Although claimant returned to his former position on February 11, 1974, he remained there for less than two months. The referee found that claimant was "totally and permanently disabled as a result of heart diseases" on April 9, 1974.

On February 27, 1976, claimant filed a claim petition alleging disability as a result of silicosis pursuant

[ 42 Pa. Commw. Page 145]

    to Section 108(q) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of the Act of October 17, 1972, P.L. 930, as amended, 77 P.S. ยง 27.1(q).

The dispute in this case focuses on the referee's finding of fact no. 25 which reads:

In addition to his heart diseases which render him totally and permanently disabled, your Referee finds that, on September 19, 1975, the claimant suffered partial or residual disability as a result of pneumoconiosis, namely: silicosis which would not in and of itself disable him from performing his former occupation as a ladel liner, and that said disease resulted from his total and cumulative exposure to the hazard of silica ...


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