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PHILIP LOIACONO v. COMMONWEALTH PENNSYLVANIA (06/20/80)

decided: June 20, 1980.

PHILIP LOIACONO, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND BETHLEHEM CORPORATION, APPELLEES. PHILIP LOIACONO V. BETHLEHEM CORPORATION AND COMMONWEALTH OF PENNSYLVANIA. COMMONWEALTH OF PENNSYLVANIA, APPELLANT



Appeals from the Order of the Court of Common Pleas of Northampton County in case of Philip Loiacono v. The Bethlehem Corporation and Commonwealth of Pennsylvania, No. 551 May Term, 1975 and case of Philip Loiacono v. Bethlehem Corporation and Commonwealth of Pennsylvania, No. 200 January Term, 1978.

COUNSEL

Sandra S. Christianson, Assistant Attorney General, with her Laurence W. Dague, Assistant Attorney General, for appellant.

George K. Keenan, with him Lawrence J. Briody, Briody and Keenan, and John P. Thomas, for appellees.

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

Author: Craig

[ 52 Pa. Commw. Page 270]

These cross appeals are before us from the July 26, 1978 order of the Court of Common Pleas of Northampton County, which affirmed the order of the Workmen's Compensation Appeal Board (board) awarding occupational disease compensation to claimant Philip Loiacono, but reversed that order insofar as it apportioned 100% of payment liability to the Commonwealth pursuant to Section 301(g) of The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1401(g); by the lower court's decision, payment liability was apportioned 40% to the Commonwealth and 60% to the employer considered by the court to be the "employer liable" under the Act.

[ 52 Pa. Commw. Page 271]

Claimant worked for Treadwell Engineering Company from 1920 until April, 1969, and from May through August of that year for Bethlehem Corporation, which succeeded Treadwell as claimant's employer upon purchasing Treadwell's assets. Throughout the entire forty-nine year period, claimant's employment was in foundry work which subjected him to a silica hazard, and there is no dispute that claimant suffers total disability due to silicosis.

Claimant's appeal contends only that the court below erred in reversing the board's allocation of 100% of payment liability to the Commonwealth. The Commonwealth's appeal alleges that claimant is precluded from compensation by virtue of his failure to give notice to Treadwell, which the Commonwealth argues is the "employer liable" within the terms of the Act; additionally, the Commonwealth contends that it may not be held 100% liable under Section 301(g) unless claimant's employment history reveals more than one employment situation in which the claimant was exposed to the occupational hazard for a minimum of six months, i.e., multiple legal exposures -- "exposure" being here given a special statutory characteristic of existing for six months or more.

Ordinarily, pursuant to Section 308(a) of the Act, 77 P.S. § 1408(a), when disability results from occupational diseases which develop to the point of disablement only after an exposure of five or more years, payment liability is shared by the Commonwealth (40%) and the employer (60%). The purpose of that apportionment was articulated in Walker v. Chestnut Hill Hospital, 214 Pa. Superior Ct. 258, 252 A.2d 383 (1969), as follows:

Some diseases, and particularly those first included in the act, such as silicosis, are insidious diseases that progress slowly to total disability; while others, like some forms of tuberculosis

[ 52 Pa. Commw. Page 272]

    may incubate from one incident of exposure and quickly reach disability. The purpose of the section we are interpreting was to set exposure periods so that hazardous industries would have full knowledge that claims based on long time exposure would be subsidized by the Commonwealth. This served two ends, one, it persuaded the hazardous industries and ...


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