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PENNSYLVANIA GLASS-SAND CORPORATION AND PENNSYLVANIA MANUFACTURER'S ASSOCIATION INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (10/05/79)

decided: October 5, 1979.

PENNSYLVANIA GLASS-SAND CORPORATION AND PENNSYLVANIA MANUFACTURER'S ASSOCIATION INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND DONALD F. GOSS, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Donald F. Goss v. Pennsylvania Glass-Sand Corporation, No. A-72363.

COUNSEL

David P. Andrews, with him Patterson, Evey, Routch, Black & Behrens, for petitioner.

Sandra S. Christianson, Assistant Attorney General, for respondents.

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

Author: Craig

[ 46 Pa. Commw. Page 378]

The lone issue presented by this appeal is whether the Workmen's Compensation Appeal Board (Board) improperly granted the Commonwealth's petition for a rehearing under Section 426 of The Pennsylvania Workmen's Compensation Act*fn1 (Compensation Act).

Claimant, a refractory worker, had filed a claim petition for compensation for total disability from silicosis.

[ 46 Pa. Commw. Page 379]

The Commonwealth and employer answered denying existence of a compensable disease under either the Compensation Act or the Pennsylvania Occupational Disease Act.*fn2

The referee found that claimant's current total disability was due in part to his exposure to silica hazards in his employment after June 30, 1973 and that the date of his disability occurred between June 30, 1973 and July 1, 1974.

He made the award of compensation under Section 108(q) of the Compensation Act,*fn3 which provides that "[c]oal worker's pneumoconiosis, anthraco-silicosis and silicosis" are to be treated as compensable disabilities under the Compensation Act. The Commonwealth accordingly became liable to pay 75% of the compensation under Section 305.1 of the Compensation Act.*fn4

The Commonwealth appealed that decision on the ground that claimant's disability was compensable only under the Disease Act. Exceptions filed by the Commonwealth also raised the question of whether the referee erred in assessing 75% of the liability against the Commonwealth. The Board affirmed the referee's decision per curiam but never addressed the question of law regarding the statutory authority for the award.

While an appeal to this court was pending, the Commonwealth filed the petition for rehearing, for the first time specifically contending that the award should have been made under Section 108(k) of the ...


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