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DUQUESNE LIGHT COMPANY v. KENNETH D. MOATS (08/13/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 13, 1979.

DUQUESNE LIGHT COMPANY, PETITIONER
v.
KENNETH D. MOATS, RESPONDENT

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Kenneth D. Moats v. Duquesne Light, Warwick Mines and Commonwealth of Pennsylvania, No. A-74717.

COUNSEL

John A. Lee, for petitioner.

Anthony J. Kovach, for respondent.

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

Author: Disalle

[ 45 Pa. Commw. Page 65]

Duquesne Light Company (Employer) asks us to overturn an order of the Workmen's Compensation Appeal Board (Board) affirming an award of benefits to Kenneth D. Moats (Claimant). We affirm.

Claimant worked in the coal mining industry from 1930 to January 31, 1976. He began working for Employer in 1940, first as a coal loader, then as a motorman, machine operator, miner and mechanic, and for the last 11 years, as a supply man, working in three different supply houses, all located outside the mines. His work exposed him to extensive amounts of dust, and on July 19, 1977, he was found to be totally and permanently disabled as a result of coal worker's pneumoconiosis and bilateral anthracosilicosis. Alleging total disability, Claimant filed a claim under 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), as added by Section 1 of the Act of October 17, 1972, P.L. 930, as amended, and was awarded benefits by the referee, the Board affirming.

[ 45 Pa. Commw. Page 66]

Employer's sole argument is that the referee erred in finding exposure to a coal dust hazard after June 30, 1973. Section 301(e) of the Act, 77 P.S. § 413, states that where an individual "was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed that [his] occupational disease arose out of and in the course of his employment." Given the considerable amount of uncontradicted testimony presented by Claimant that he was exposed to vast quantities of coal dust while working in the various supply houses near the mines, the referee did not err in holding that Employer failed to rebut the presumption of exposure to a hazard.*fn1 Accordingly, the award of benefits was proper, and we affirm.

Order

And Now, this 13th day of August, 1979, the order of the Workmen's Compensation Appeal Board, dated September 21, 1978, affirming the referee's award of benefits to Kenneth Moats is affirmed, and judgment is entered on the award. Compensation for total disability shall be paid at the rate of $187.00 per week beginning on July 19, 1977, and continuing as long as Claimant shall be totally disabled. Accrued compensation shall bear the statutory interest rate of ten (10) percent. Attorney's fees in the amount of twenty (20) percent shall be paid to Claimant's attorney as recommended by the referee. In addition, Duquesne Light shall pay Claimant for the following costs incurred by him or by his counsel:

[ 45 Pa. Commw. Page 67]

(1) To Kenneth D. Moats, Claimant, for

     payment of statement of Dr. A. Carl

Walker, for his physical examination

     in connection with the subject claim

     petition $150.00

(2) To Anthony J. Kovach, Claimant's attorney,

     for payment of the statement

     of Dr. A. Carl Walker for his deposition

     in this case 200.00

(3) To Anthony J. Kovach, Claimant's attorney,

     for payment of the statement

     of Diane C. Dayton for her taking of

     the deposition of Dr. A. Carl Walker

     in this case 83.60

Disposition

Affirmed.


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