Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Iona Myers v. Workmen's Compensation Appeal Board and Sun Shipbuilding and Drydock Co., No. 1738 May Term, 1977.
John F. McElvenny, for appellant.
Andrew J. Forbes, Cramp, D'Iorio, McConchie & Forbes, P.C., for appellee, Sun Shipbuilding & Dry Dock Company.
Henry A. Riley, Assistant Counsel, for appellee, Workmen's Compensation Appeal Board.
President Judge Crumlish, Jr. and Judges Rogers and MacPhail, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Dissenting Opinion by Judge MacPhail.
[ 74 Pa. Commw. Page 324]
Iona Myers appeals a Philadelphia County Common Pleas Court order affirming a Workmen's Compensation Appeal Board modification of a referee's benefits award. We reverse and remand.
Myers filed a fatal claim petition under "The Pennsylvania Occupational Disease Act,"*fn1 alleging
[ 74 Pa. Commw. Page 325]
that her husband died from an occupational disease contracted in the course of his employment with Sun Shipbuilding and Dry Dock Company. The referee made the following finding of fact:
3. Claimant's decedent sustained an occupational disease, to wit, anthracosilicosis and asbestosis which moved to the point of disablement on March 13, 1971. After claimant's decedent became totally disabled his anthracosilicosis became diffuse, developed an undifferentiated carcinoma with general metastasis, which finally resulted in respiratory failure and death on April 7, 1972.
The referee awarded Myers lifetime benefits in the amount of $35.00 a week, but failed to limit the award to $12,750, as required by the Act for a death resulting from asbestosis or silicosis. Section 301(a)(2) of the Act.*fn2 There is no corresponding limitation on benefits for deaths due to cancer.
The Commonwealth and Sun Shipbuilding appealed to the Board, which modified the referee's award by placing a $12,750 limit on total benefits. The Board refused to consider Myers' argument that the referee's award was proper because the cause of death was cancer, deciding that Myers was precluded from raising this argument because she had not appealed the referee's decision. The common ...