Appeal from the order of the Court of Common Pleas of Westmoreland County, in case of Mary Weishar, Widow of Edward Weishar v. Allegheny Pittsburgh Coal Company and Commonwealth of Pennsylvania, Bureau of Workers' Compensation, No. 2122 of 1981.
Paul E. Baker, Assistant Counsel, for appellant.
Ronald J. Zera, with him, Ada Guyton, for appellee.
President Judge Crumlish, Jr., Judges Rogers and Colins, sitting as a panel of three. Opinion by Judge Rogers.
[ 100 Pa. Commw. Page 530]
The Commonwealth of Pennsylvania, Department of Labor and Industry, appeals from an order of the Court of Common Pleas of Westmoreland County. The court, reversing an order of the Workmen's Compensation Appeal Board (board), reinstated a referee's award to Mary Weishar (claimant) of $750 toward the expenses for the burial of her husband, Edward Weishar.
In 1968, the claimant's husband, Edward Weishar, filed a claim petition under the Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P.S. §§ 1201-1601.1, alleging that he was totally disabled by pneumoconiosis and silicosis. Mr. Weishar was awarded benefits which were duly paid him during his lifetime. The referee had ordered that Mr. Weishar's employer, Allegheny Pittsburgh Coal Company, pay 60% of the award and that the Commonwealth pay 40%, as provided in the circumstances by Section 308 of the Act, as amended, 77 P.S. § 1408.
Following the death of her husband, the claimant filed a fatal claim petition pursuant to Section 307 of the Act, 77 P.S. § 1407(8), seeking a total of $750 in burial expenses. She alleged that the decedent's death on December 3, 1979 resulted from "anthracosilicosis and/or coal worker's pneumoconiosis," and that the decedent had been employed by Allegheny Pittsburgh Coal Company for thirty-eight years in a hazardous occupation having a silica hazard.
[ 100 Pa. Commw. Page 531]
At a referee's hearing, the claimant testified to the effect that her husband just before his death had had difficulty breathing, that he had problems walking up steps, and that he coughed a lot and brought up mucus. There was also evidence that the decedent had received monthly benefits, pursuant to the Black Lung Benefits Act, 30 U.S.C. § 901, which, as his successor, the claimant continues to receive. No medical witness testified; but the claimant offered into evidence her husband's death certificate, which was admitted without objection by the Commonwealth or the employer. The death certificate pertinently reads as follows:
Part I. Death was caused by:
Immediate Cause (a) Massive Gastric ...