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MAX R. SYSTER v. HAWS REFRACTORIES AND COMMONWEALTH PENNSYLVANIA. HAWS REFRACTORIES (10/20/87)

decided: October 20, 1987.

MAX R. SYSTER
v.
HAWS REFRACTORIES AND COMMONWEALTH OF PENNSYLVANIA. HAWS REFRACTORIES, APPELLANT



Appeal from the Order of the Court of Common Pleas of Cambria County in the case of Max R. Syster v. Haws Refractories and Commonwealth of Pennsylvania, No. 1984-893.

COUNSEL

Craig E. Kuyat, with him, Edward G. Kuyat, Jr., Kuyat & Walker, for appellant.

Wanda Whare, with her, Thomas D. Gould, Paul E. Baker, Assistant Counsel, for appellee.

Judges MacPhail and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 110 Pa. Commw. Page 336]

Haws Refractories (employer) here appeals an order of the Court of Common Pleas of Cambria County (trial court) which reversed an order of the Workmen's Compensation Appeal Board (Board). The Board had determined that the Commonwealth alone was liable to Max R. Syster (claimant) for his work-related occupational disease disability.

The claimant had been employed by the employer from July 5, 1950 to June 20, 1967. During that time he

[ 110 Pa. Commw. Page 337]

    was exposed to silica hazards at work. Subsequently, he was employed by Lass Tire Company for one year and then by Fleming Buick for approximately fourteen years, neither job resulting in exposure to silica hazards. He filed a petition on July 27, 1982 under Section 301(i) of The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1401 (Act), alleging total disability as of July 8, 1982 as a result of silicosis. A workmen's compensation referee found that the claimant had been exposed to the silica hazard while employed by the employer here concerned, and further found that the claimant had become totally and permanently disabled on July 8, 1982 as a result of pneumoconiosis, due to silica. The referee concluded that the claimant was entitled to lifetime compensation under Section 301(i), and further concluded that, because the claimant's last exposure date was June 20, 1967, liability for his compensation rested entirely with the Commonwealth. The Board affirmed. Further appeal to the trial court followed, and it reversed the Board.

Preliminarily, it is necessary to set forth the relevant statutory law. Section 301(i) was first added to the Act on November 10, 1965 with an effective date of December 1, 1965. It read as follows:

(i) Notwithstanding any other provisions of this act, compensation for silicosis, anthracosilicosis, coal worker's pneumoconiosis, and asbestosis shall be paid for each month beginning with the month this amending act becomes effective, or beginning with the first month of disability, whichever occurs later, at the rate of seventy-five dollars ($75) per month, to every employe totally disabled thereby as a result of exposure thereto, who has not theretofore been compensated because his claim was barred by any of the time

[ 110 Pa. Commw. Page 338]

    limitations prescribed by this act, and shall continue during the period of such total disability. No compensation under this section shall be paid to any employe who has not been exposed to a silica, coal, or asbestos hazard within the Commonwealth of Pennsylvania for a period of two years. All such compensation to those whose last exposure precedes the effective date of this amending act shall be paid by the Commonwealth. Employes whose last exposure follows the effective date of ...


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