Appeal from the Order of the Workmen's Compensation Appeal Board in case of Raymond Schwab, Claimant v. Rochester & Pittsburgh Coal Co. and Commonwealth of Pennsylvania, No. A-75287.
Paul E. Sutter, with him George H. Thompson of Hirsch, Weise & Tillman, for petitioners.
Lawrence W. Dague, with him Sandra Christianson and Larry A. Makel, Assistant Attorneys General, for respondents.
Judges Wilkinson, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers. This decision was reached prior to the expiration of the term of office of Judge DiSalle. Dissenting Opinion by Judge Wilkinson, Jr.
[ 48 Pa. Commw. Page 551]
Rochester & Pittsburgh Coal Company and its insurer, Old Republic Companies (Petitioners), have appealed from an order of the Workmen's Compensation Appeal Board (Board) affirming in relevant part a referee's decision awarding workmen's compensation benefits to Raymond Schwab for total disability due to pneumoconiosis. Section 108(q) of The Pennsylvania Workmen's Compensation 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. § 27.1(q).
The only issue before us on this appeal is whether or not the Commonwealth has any liability for the payment of Schwab's benefits under Section 305.1 of the Act of June 2, 1915, P.L. 736, as amended, added by Section 2 of the Act of December 6, 1972, P.L. 1627, 77 P.S. § 411.1, which provides that:
Any compensation payable under this Act for . . . coal-worker's pneumoconiosis as defined in Section 108(q) for disability occurring on or after July 1, 1973 or for death resulting therefrom shall be paid as follows: if the disability begins between July 1, 1973 and June 30, 1974, inclusive, the employer shall pay twenty-five per centum and the Commonwealth seventy-five per centum; if the disability begins between July 1, 1974 and June 30, 1975, inclusive, the employer shall pay fifty per centum and the Commonwealth fifty per centum; if the disability begins between July 1, 1975 and June 30, 1976, inclusive, the employer shall pay seventy-five per centum and the Commonwealth twenty-five per centum; and if the disability begins on
[ 48 Pa. Commw. Page 552]
or after July 1, 1976, all compensation shall be payable by the employer.
The referee found as fact that Schwab's total disability began on August 6, 1976 and concluded that petitioners were solely liable for the payment of benefits due Schwab. Petitioners, however, contend that the referee's finding capriciously disregards evidence that Schwab's total disability began at the latest on May 28, 1976 and thus the Commonwealth should be liable for the payment of twenty-five per centum of Schwab's benefits.
Petitioners, for the purposes of Section 305.1 of the Act, have the burden of proving when Schwab's total disability began. Gateway Coal Co. v. Workmen's Compensation Appeal Board, 36 Pa. Commonwealth Ct. 608, 388 A.2d 1122 (1978). Since the decision below was against petitioners, they must show that there was a capricious disregard of competent evidence, a difficult standard to overcome. Jones & Laughlin Steel Corp. v. Workmen's Compensation Appeal Board, 41 Pa. Commonwealth Ct. 223, 227, 399 A.2d 444, 446 (1979). We do not believe that petitioners have overcome this standard here.
The only evidence introduced tending to establish a date when Schwab's total disability began was that of Schwab's medical witness, Dr. Levine. Dr. Levine examined Schwab on May 28, 1976. He made a contemporaneous written report of this examination in which he expressed no opinion as to disability but in which he recommended that additional tests be made. Dr. Levine examined Schwab again on August 6, 1976, at which time the results of the recommended tests (which in fact had been made before May 28, 1976) were available. In the written report made of the August 6, ...