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COLT INDUSTRIES v. COMMONWEALTH PENNSYLVANIA (05/14/80)

decided: May 14, 1980.

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



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Eli McCullough v. Colt Industries, No. A-75959.

COUNSEL

Roy F. Walters, Jr., Fried, Kane, Walters and Zuschlag, for petitioner.

Edwin H. Beachler, with him Richard G. Spagnolli and William R. Caroselli, of McArdle, Caroselli, Spagnolli & Beachler, for respondents.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 51 Pa. Commw. Page 355]

Colt Industries (petitioner) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's order awarding compensation to Eli McCullough (claimant).

The claimant had worked at the coke batteries of Crucible Steel (a division of the petitioner organization) for approximately 28 years. He was discharged at the age of 62 in May of 1975 as a result of a fight with his foreman, and he admits that, at the date of his discharge, he was not disabled. Approximately 18 months after his discharge, however, he notified the petitioner that he was disabled due to pneumoconiosis.

[ 51 Pa. Commw. Page 356]

The petitioner's examining physician, Dr. Michael Wald, testified by way of deposition that the claimant was permanently disabled as a result of chronic bronchitis and pneumoconiosis, and that these conditions were the result of inhalation of dust at the coke batteries. The referee concluded that, pursuant to Sections 108 and 301(c) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 27.1 and 411(2), the claimant had suffered a partial disability as a result of his employment with the petitioner and ordered the petitioner, a self-insured company, to compensate the claimant in the amount of $151.67 per week.

The petitioner raises two issues in this appeal. First, it contends that, because the claimant was discharged for a disciplinary infraction, his physical condition should have been assessed at the date of his discharge for the purposes of determining the existence of a compensable injury or disease. Second, the petitioner argues that the referee's finding of disability was not based on substantial evidence. In disposing of these issues, we bear in mind that our review is limited to a determination of whether or not the petitioner's constitutional rights were violated, an error of law was committed, and, because the party with the burden of proof prevailed below, whether or not the necessary findings of fact were supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Dumm v. Workmen's Compensation Appeal Board, 42 Pa. Commonwealth Ct. 594, 401 A.2d 415 (1979).

With regard to the petitioner's first contention, we note that an employee who is injured while outside the scope of his employment is ineligible for workmen's compensation, Section 301(a) of the Act, 77 P.S. § 431, and it also has been held that if the proximate cause of the injury is the employee's deliberate violation

[ 51 Pa. Commw. Page 357]

    of the employer's rules, the injury may be held to have occurred outside the course of employment, Walker v. Nu-Car Carrier's, Inc., 164 Pa. Superior Ct. 246, 63 A.2d 484 (1949). In the present case, however, the referee found that the claimant's disability due to pneumoconiosis and bronchitis occurred in the course of his ...


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