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ALBERT W. STRAUSSER v. ALLEGHENY LUDLUM INDUSTRIES AND COMMONWEALTH PENNSYLVANIA (12/13/82)

decided: December 13, 1982.

ALBERT W. STRAUSSER, APPELLANT
v.
ALLEGHENY LUDLUM INDUSTRIES AND COMMONWEALTH OF PENNSYLVANIA, OCCUPATIONAL DISEASE FUND, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Albert W. Strausser v. Allegheny Ludlum Industries and Commonwealth of Pennsylvania, No. S.A. 669 of 1981.

COUNSEL

William J. Krzton, Krzton and Krzton, for appellant.

Henry A. Riley, Assistant Counsel, for appellees.

President Judge Crumlish, Jr. and Judges MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 70 Pa. Commw. Page 358]

Albert W. Strausser (Claimant) has appealed from an order of the Court of Common Pleas of Allegheny County which affirmed an order of the Workmen's Compensation Appeal Board (Board) denying Claimant's petition for compensation benefits under The Pennsylvania Occupational Disease Act (Act), Act of June 21, 1939, P.L. 566 as amended, 77 P.S. ยงยง 1201-1603.

This matter was commenced by the filing of a claim petition on February 2, 1972. Claimant alleges in the petition that, as a result of his employment by Allegheny

[ 70 Pa. Commw. Page 359]

Ludlum Industries (Employer) for approximately forty-two years, he became totally and permanently disabled as of July 14, 1971 by silicosis, an occupational disease.*fn1 Over the ensuing decade a complex procedural history has developed which we will briefly summarize. Following the initial hearing in this matter the referee denied benefits, concluding that Claimant had failed to meet his burden of proving statutory notice, exposure to a silica hazard or that he suffered from a job-related disability. Claimant's appeal to the Board resulted in a remand for additional medical testimony. The referee, on remand, again denied compensation benefits and a second appeal was taken which ultimately resulted*fn2 in a Board opinion affirming the referee. Claimant appealed the Board's order to the court of common pleas, but subsequently petitioned the Board for a rehearing. The Board granted the rehearing and once again remanded to the referee. After three additional hearings, the referee again denied compensation benefits. Both the Board and the court of common pleas affirmed and the instant appeal was taken.

The following legal conclusions, as stated by the referee and affirmed by the Board and the court of common pleas, are at issue in the instant appeal:

1. The claimant has failed to establish that he gave proper statutory notice of the alleged disability.

2. The claimant has failed to meet his burden to establish an exposure to a silica hazard while ...


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