Appeal from the Order of the Workmen's Compensation Appeal Board on case of Charles Linkovitch v. Jones & Laughlin Steel Corporation, No. A-73397.
Raymond F. Keisling, Will & Keisling, for petitioner.
Sandra S. Christianson, Assistant Attorney General, for respondents.
Judges Rogers, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 52 Pa. Commw. Page 438]
Petitioner Jones & Laughlin Steel Corporation (Employer) appeals to this Court from a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a decision of the referee granting workmen's compensation benefits to Charles Linkovitch (Claimant) as a result of an occupational disease related disability and ordering Employer and the Commonwealth each to pay fifty per cent of those benefits. Employer challenges only the allocation of payments ordered, arguing that it should be responsible for twenty-five per cent of the benefits and the Commonwealth for the remaining seventy-five per cent. For the reasons which follow, we affirm the order of the Board.
Section 305.1 of The Pennsylvania Workmen's Compensation Act (Act), 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, provides
Any compensation payable under this act for silicosis, anthraco-silicosis or coalworker'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 ; . . . . (Emphasis added.)
[ 52 Pa. Commw. Page 439]
In a case such as this, the date on which a claimant's disability begins does not coincide automatically with the date of claimant's final exposure to an occupational disease or with the date on which a physician examines a claimant and declares him or her to be disabled. Rather, the date of disability must be determined independently on the facts of each case. Jones & Laughlin Steel Corp. v. Workmen's Compensation Appeal Board, 35 Pa. Commonwealth Ct. 58, 60, 384 A.2d 1046, 1048 (1978); Novak v. Mathies Coal Co., 29 Pa. Commonwealth Ct. 122, 124-25, 370 A.2d 435, 436-37 (1977).
When an employer disputes the apportionment of liability ordered by the compensation authorities, the employer bears the burden of proving when claimant's permanent and total disability began. Jones & Laughlin Steel Corp. v. Workmen's Compensation Appeal Board, 41 Pa. Commonwealth Ct. 223, 227, 399 A.2d 444, 446 (1979). Where, as here, the party with the burden of proof does not prevail before the Board, our scope of review is limited to a determination of whether the findings of fact are consistent with each other and with the conclusions of law and whether they can be sustained without a capricious disregard of competent evidence, that is without a willful, deliberate disbelief of an apparently trustworthy witness, whose testimony one could not possibly challenge. Jones & Laughlin Steel Corp. v. Workmen's Compensation Appeal Board at 227, 399 A.2d at 446; American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 594, 377 A.2d 1007, 1009 (1977). The party prevailing before the Board is entitled on appeal to the most favorable inferences to be drawn from the evidence. Of course, questions of credibility and the weight to be given the evidence presented are for the referee who may accept or reject the testimony of any witness in whole or in
[ 52 Pa. Commw. Page 440]
part, American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board at 595, 377 A.2d at 1010, and who may disregard even uncontradicted testimony, Minadeo v. Workmen's Compensation Appeal Board, ...