No. 98 E.D. Appeal Docket 1983, Appeal from the Order of the Commonwealth Court of Pennsylvania at No. 1057 C.D. 1981 Affirming in Part and Reversing in Part the Order of the Workmen's Compensation Appeal Board Order dated April 16, 1981 at No. A-79816
Anthony J. Piazza, Scranton, for appellant.
Donald T. Rogers, Wilkes Barre, for Insurance Co. of North America.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.
This is an appeal by Stanton Dettenmeyer from a Commonwealth Court Order, 458 A.2d 329, reversing that part of a Workmen's Compensation Appeal Board order holding Insurance Company of North America (INA) liable for the total disability benefits of Dettenmeyer.
Stanton Dettenmeyer worked for Crown Weaving Corporation for twenty-two years. During the course of his employment, Dettenmeyer was exposed to raw cotton fibers and developed byssinosis, an occupational disease commonly referred to as "white lung." Due to the advanced condition of this disease, he was forced to reduce his work week from forty to twelve hours per week, beginning January 2, 1975.
On January 28, 1975, INA cancelled its Workmen's Compensation coverage of Crown Weaving due to the latter's failure to pay premiums. Six weeks later, on March 14, 1975, Dettenmeyer was forced to stop work completely due
to the byssinosis. The Referee ordered, and the Workmen's Compensation Board affirmed, that either Crown Weaving or INA pay partial disability benefits from January 2, 1975, and total disability benefits from March 14, 1975. Crown Weaving is now bankrupt. INA appealed and the Commonwealth Court held that INA was responsible for the payment of benefits for temporary partial disability but not for Dettenmeyer's total disability benefits. The Commonwealth Court cited their decision in Ertz v. Glen Nan, Inc., 29 Pa. Commw. 409, 412, 371 A.2d 533, 535 (1977), holding that "the last moment of the employee's exposure" controlled the liability of the insurance carrier. Since INA did not insure Crown Weaving's employees at Dettenmeyer's "last moment of exposure," Commonwealth Court held that INA was not responsible for his total disability benefits. We disagree.
In Ertz, the relevant facts were these: Ertz was employed as an anthracite coal miner and worked on the 11:00 p.m. to 7:00 a.m. shift. The last shift worked by Ertz began at 11:00 p.m. on February 21, 1974, and ended at 7:00 a.m. on February 22, 1974. During that shift, the insurance coverage of one carrier ended at 12:01 a.m. on February 22, while a second carrier's coverage commenced at precisely the same moment. The Commonwealth Court held that the employee's last moment of exposure to the occupational hazard fixed the liability of both the employer and his insurance carrier, and, therefore, placed the entire burden for total disability benefits on the second carrier. This result was correct but it is hereby limited only to the situation where the ...