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COMMONWEALTH PENNSYLVANIA v. WORKMEN'S COMPENSATION APPEAL BOARD (BRYAN KENNEDY (06/19/86)

decided: June 19, 1986.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, BUREAU OF WORKERS' COMPENSATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BRYAN KENNEDY, JR., AND VANDERBILT SLAG COMPANY), RESPONDENTS. VANDERBILT SLAG COMPANY, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (KENNEDY), RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board in the case of Bryan Kennedy, Jr. v. Vanderbilt Slag Company and Commonwealth of Pennsylvania, No. A-84428.

COUNSEL

Thomas D. Gould, Assistant Counsel, with him, Arthur P. Tonozzi, for petitioner/respondent, Department of Labor and Industry.

Leta Pittman, with her, A. J. Plastino, II, for petitioner/respondent, Vanderbilt Slag Company.

Judges Rogers and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 98 Pa. Commw. Page 265]

Vanderbilt Slag Company, last employer of Bryan Kennedy, Jr., Claimant, and Commonwealth of Pennsylvania,

[ 98 Pa. Commw. Page 266]

Bureau of Workers' Compensation, come before this Court in separate appeals on an order of the Pennsylvania Workmen's Compensation Appeal Board (Board), which affirmed an award to Claimant by a referee for total disability under Section 108(q) of the occupational disease provisions of The Pennsylvania Workmen's Compensation Act (Act).*fn1 We will affirm the award and reverse in part on the appeal of the Commonwealth.

The unfortunately extensive litigation in this case stems from Claimant's claim for total disability as of August 16, 1974 in a petition filed on August 26, 1974. Since that date there have been four decisions of the referee and four opinions by the Board, including Board action in reversing referee's decisions awarding benefits under Sections 108(k)*fn2 and 108(n),*fn3 whereas the ultimate and existing final order of the compensation authorities awards compensation benefits under Section 108(q).

Actually, our examination of the record as a whole and of all of the decisions by the referee and by the Board leads us to conclude that sections of the Act with which we are here concerned are Sections 108(q), 301(e)*fn4 and 305.1.*fn5 These sections are set forth in the Act as follows:

(q) Coal worker's pneumoconiosis, anthraco-silicosis and silicosis (also known as miner's asthma or black lung) in any occupation involving direct contact with, handling of, or exposure to the dust of anthracite or bituminous coal.

[ 98 Pa. Commw. Page 267]

(e) If it be shown that the employe, at or immediately before the date of disability, was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed that the employe's occupational disease arose out of and in the course of his employment, but this presumption shall not be conclusive.

Section 305.1. Any compensation payable under this act for silicosis, anthraco-silicosis or coalworker's pneumoconiosis as defined in section 108(q) for disability occurring on or after July 1, 1973. . . . If the disability begins between July 1, 1973 and June 30, 1974, inclusive, the employer shall pay twenty-five per centum and the Commonwealth seventy-five per centum; if the disability begins between July 1, 1974, and June 30, 1975, inclusive, the employer shall pay fifty per centum and the Commonwealth fifty per centum; . . .

In addition, both parties contend that there is no compensable exposure after June 30, 1973, denying liability under the Act because ...


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