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CHARLES FORTELY v. WORKMEN'S COMPENSATION APPEAL BOARD (J & L STEEL CORPORATION (BUCKEYE)) (06/28/88)

decided: June 28, 1988.

CHARLES FORTELY, DECEASED, HELEN FORTELY, WIDOW, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (J & L STEEL CORPORATION (BUCKEYE)), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Charles Fortely, Dec'd, Helen Fortely, Widow v. J & L Steel Corporation (Buckeye), No. A-91499.

COUNSEL

Alexander J. Pentecost, with him, Amiel B. Caramanna, Jr., for petitioner.

Beth S. Kromer, Tillman & Thompson, for respondents.

Judges Craig, Doyle and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 117 Pa. Commw. Page 357]

Helen Fortely (Petitioner) appeals an order of the Workmen's Compensation Appeal Board (Board) affirming the decision of a referee to deny death benefits on behalf of her husband, Charles Fortely (Decedent). We affirm.

Decedent was employed as a coal miner by Jones and Laughlin Steel Corporation (Employer) from September 18, 1939 to August 26, 1976. Decedent died on February 15, 1984. Petitioner filed a fatal claim petition on or about November 7, 1985, alleging that Decedent's death was caused by pneumoconiosis and anthracosilicosis as a result of exposure to coal dust at work. Employer contested this claim and asserted that the claim was time barred because Decedent's death did not occur within three hundred (300) weeks after the last date of exposure to the coal dust.

After a hearing, the referee determined that Decedent's death did not occur within 300 weeks after the last date of employment in the coal industry where he was exposed to the coal dust hazard. The Board affirmed the decision of the referee. The Board noted that Decedent had not filed for benefits under either The Pennsylvania Workmen's Compensation Act*fn1 (Workmen's Compensation Act) or the Pennsylvania Occupational Disease Act*fn2 (Occupational Disease Act) during his lifetime. The Board further determined that no testimony

[ 117 Pa. Commw. Page 358]

    had been presented to establish that Decedent became disabled within 300 weeks of his last date of employment nor that Decedent became aware of his disability and its relationship to his work within the 300 weeks prior to his death.

On appeal to this court, Petitioner contends that she was prepared to offer medical evidence that Decedent became disabled on February 22, 1982 or October 20, 1982 from his exposure to coal dust and that Decedent died within 300 weeks of that disability. Petitioner argues that if she is permitted to establish this, she is entitled to death benefits regardless of whether Decedent filed a claim for benefits during his lifetime.*fn3

Section 301(c)(2) of the Workmen's Compensation Act*fn4 provides in pertinent part:

[W]henever occupational disease is the basis for compensation, for disability or death under this act, it shall apply only to disability or death resulting from such disease and occurring within three hundred weeks after the last date of employment in an occupation or industry to which he was exposed to hazards of such disease: And provided further, That if the employe's compensable disability has ...


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