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INSURANCE COMPANY NORTH AMERICA v. WORKMEN'S COMPENSATION APPEAL BOARD (STANTON DETTENMEYER) (04/15/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 15, 1983.

INSURANCE COMPANY OF NORTH AMERICA, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (STANTON DETTENMEYER), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Stanton Dettenmeyer v. Crown Weaving Corporation, No. A-79816.

COUNSEL

Donald T. Rogers, Lowery, Ciavarella & Rogers, for petitioner.

Thomas J. Nolan, with him Anthony J. Piazza, Jr., Tellie, Durkin, Weinberger, Murphy and Piazza, P.C., for respondents.

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

Author: Crumlish

[ 73 Pa. Commw. Page 450]

The Workmen's Compensation Appeal Board (Board) affirmed a referee's order that either Crown Weaving Corporation (Employer) or the Insurance Company of North America (INA) pay benefits to Stanton Dettenmeyer (Employee). INA, contending that it is not the responsible insurance carrier, appeals. We affirm in part and reverse in part.

Dettenmeyer is entitled indisputably to benefits under Section 108(p) of The Pennsylvania Workmen's Compensation Act*fn1 (Act) for disability caused by byssinosis. The sole issue is whether INA must pay those benefits.

[ 73 Pa. Commw. Page 451]

Dettenmeyer worked for Crown Weaving for twenty-two years, until March 14, 1975. Due to his employment-related exposure to raw cotton fiber dust, he was awarded temporary partial disability benefits from January 2, 1975, to March 14, 1975, and total disability benefits from March 15, 1975. The referee directed that either the Employer or INA, the Employer's insurance carrier, satisfy the award.*fn2 INA appeals, claiming that it is not liable for the benefits since it had previously terminated the Employer's insurance coverage.*fn3

Section 301(c)(2) of the Act*fn4 provides, in part, that:

The employer liable for compensation [arising from a work-related byssinosis disability] shall be the employer in whose employment the employe was last exposed for a period of not less than one year to the hazard of the occupational disease claimed. . . . (Emphasis added.)

The employee's last exposure to the occupational hazard fixes the liability of both the employer and his insurance carrier. Ertz v. Glen Nan, Inc., 29 Pa. Commonwealth Ct. 409, 412, 371 A.2d 533, 535 (1977). The term "last exposure," for the purpose of fixing

[ 73 Pa. Commw. Page 452]

    a carrier's liability, means "the last moment of the employee's exposure." Ertz at 414, 371 A.2d at 536. Here, since Dettenmeyer's last exposure in relation to the total disability claim was his last day of work, (March 14, 1975), and since INA had by that time terminated the Employer's coverage, INA is not liable for payment of total disability benefits.*fn5

INA's liability for temporary partial disability payments, however, is a different matter. Dettenmeyer's last exposure, for partial disability purposes, occurred during the policy period. Thus, INA is the responsible carrier for the temporary partial disability benefits.

Affirmed in part and reversed in part.

Order

That portion of the Workmen's Compensation Appeal Board order, No. A-79816, dated April 16, 1981, which directs Crown Weaving Corporation and/or

[ 73 Pa. Commw. Page 453]

    the Insurance Company of North America to pay Stanton Dettenmeyer temporary partial disability compensation at the designated rate for the period from January 2, 1975 to March 14, 1975, is hereby affirmed. That portion of the order, however, which requires the Insurance Company of North America to assume liability for total disability compensation is hereby reversed.

Disposition

Affirmed in part and reversed in part.


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