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WHEELING-PITTSBURGH STEEL CORP. v. WORKMEN'S COMPENSATION APPEAL BOARD (CHARLES T. SMITH) (11/19/82)

decided: November 19, 1982.

WHEELING-PITTSBURGH STEEL CORP., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CHARLES T. SMITH), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Charles T. Smith v. Wheeling-Pittsburgh Steel Corporation, No. A-79633.

COUNSEL

Dominic D. Salvatori, for petitioner.

Edwin H. Beachler, McArdle, Caroselli, Spagnolli & Beachler, for respondent, Charles T. Smith.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 70 Pa. Commw. Page 101]

This is an appeal by the Wheeling-Pittsburgh Steel Corporation (Petitioner, or Wheeling-Pittsburgh Steel) from a decision of the Workmen's Compensation Appeal Board (Board) affirming a referee's award of compensation benefits pursuant to Section 108(n) of the Pennsylvania Workmen's Compensation Act (Workmen's Compensation Act), Act of June 2,

[ 70 Pa. Commw. Page 1021915]

, P.L. 736, as amended, 77 P.S. ยง 27.1(n). We affirm the decision of the Board.

Charles T. Smith (Claimant, or Smith) filed in October of 1976 for the recovery of benefits for an occupational disease. He alleged total disability as of September 20, 1976 due to pulmonary pneumoconiosis from exposure to deleterious gases and particulates while working for Wheeling-Pittsburgh Steel. Smith had voluntarily retired from Wheeling-Pittsburgh Steel some eleven months earlier. A referee awarded disability benefits finding that as of September 20, 1976, Claimant suffered from a loss of earning power.

On appeal to the Board, Petitioner urged that since the disability occurred eleven months after voluntary retirement, Claimant suffered no loss of earning power and his disability was not compensable. The Board rejected Petitioner's argument and affirmed the referee's award. Before this Court, Petitioner alleges error of law in the Board's affirmance and reasserts the argument rejected by the Board.

The Workmen's Compensation Act provides in pertinent part:

[W]henever occupational disease is the basis for compensation, for disability or death under this act, it shall apply only to disability or death resulting from such disease and occurring within three hundred weeks after the last day of employment in an ...


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