Appeal from the Order of the Workmen's Compensation Appeal Board in case of Theodore H. Hardobey v. National Mines Corporation, No. A-74796.
Paul E. Sutter, with him, George H. Thompson, of Hirsch, Weise & Tillman, for petitioners.
Sandra Christianson, Assistant Attorney General, with her, Larry A. Makel, Assistant Attorney General, for respondents.
Judges Crumlish, Jr., Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig. President Judge Bowman did not participate in the decision in this case. Judge DiSalle did not participate in the decision in this case.
National Mines Corporation (employer) and its insurer Old Republic Companies, as petitioners, appeal from the decision of the Workmen's Compensation Appeal Board (board) which affirmed the referee's determination of total disability of Thomas Hardobey (claimant) due to anthracosilicosis resulting from his employment by National.
Claimant filed for occupational disease benefits on April 26, 1976, alleging that on April 5, 1976, he became totally disabled from coal worker's pneumoconiosis stemming from work for the employer. After a hearing on January 17, 1977, at which medical testimony and exhibits were received, the referee found the claimant "totally and permanently disabled from anthracosilicosis as of December 14, 1976", drawing that date from the date on which one of the physician witnesses examined claimant.
Petitioners do not contest the finding of total disability due to work-related anthracosilicosis. They contend only that the referee erred in finding the disability "as of" December 14, 1976, and thus allocating 100% of the compensation payment liability
to the employer, pursuant to Section 305.1 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, added by the Act of December 6, 1972, P.L. 1627, No. 337, § 2, 77 P.S. § 411.1, which provides in pertinent part that "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 or after July 1, 1976, all compensation shall be payable by the employer."
Petitioners contend that in so finding, and awarding accordingly, the referee capriciously disregarded competent evidence to the effect that claimant's disability began before July 1, 1976, so that twenty-five per cent of the compensation awarded should have been apportioned to be paid by the Commonwealth.
Initially, we are given some pause by the referee's terminology, finding claimant disabled "as of" December 14, 1976. Admittedly, the finding is not as precise as it would be if it stated ...