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COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (10/20/86)

decided: October 20, 1986.

COMMONWEALTH OF PENNSYLVANIA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND BUSHING'S, INC., AND WILLIAM L. DIETZEL, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of William L. Dietzel v. Bushing's, Inc., and Commonwealth of Pennsylvania, No. A-79996.

COUNSEL

John T. Kupchinsky, Assistant Counsel, with him, Henry A. Riley, Assistant Counsel, for petitioner, Commonwealth of Pennsylvania.

No appearance for respondents.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 101 Pa. Commw. Page 337]

In this appeal, the Department of Labor and Industry (Commonwealth) contends that the Workmen's Compensation Appeal Board (Board) erred when it held that the Commonwealth was liable for twenty-five percent (25%) of the compensation awarded to the Claimant,

[ 101 Pa. Commw. Page 338]

William L. Dietzel, who was found to be totally disabled by anthraco-silicosis and emphysema.

Section 305.1 of The Pennsylvania Workmen's Compensation Act (WC Act),*fn1 imposes liability upon the Commonwealth for a percentage of workmen's compensation benefits due to workers disabled by silicosis, anthraco-silicosis or coalworkers pneumoconiosis where the disability occurs between July 1, 1973 and June 30, 1976. The percentage the Commonwealth must pay depends upon the date disability occurs.

In the case sub judice, the Claimant was employed in various anthracite coal mines from 1927 to 1939. He was employed by Bushing's, Inc. from 1950 to 1975. On August 2, 1977, a referee handed down a decision finding that under the provisions of the WC Act the Claimant was exposed to a silica hazard in the coal mines and in the place of his last employment (Bushing's, Inc.). When the Commonwealth appealed, that decision was remanded by the Board to the referee for more specific findings to determine whether the Claimant had proven exposure to a hazard under the provisions of "Section 108(q) of the Workmen's Compensation Act."*fn2 After a further hearing, a referee concluded that Claimant had not been exposed to a silica hazard at Bushing's, Inc. and dismissed the claim. The Claimant appealed to the Board which then vacated its original remand order, denied the Commonwealth's appeal from the referee's decision of August 2, 1977 and reinstated the referee's award. All references in the Board's opinion are to provisions of the WC Act.

In its appeal to this Court, the Commonwealth contends that since Section 108(q) of the WC Act, 77 P.S.

[ 101 Pa. Commw. Page 339]

§ 27.1(q) limits anthraco-silicosis and silicosis to "direct contact with, handling of or exposure to the dust of anthracite or bituminous coal" and Claimant had no such exposure after 1939, the Commonwealth could not be liable for any part of Claimant's compensation. Section 301(c)(2) of the WC Act, 77 P.S. § 411(2) imposes such liability only where the exposure ...


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