Appeal from the Order of the Court of Common Pleas of Blair County, in the case of Paul J. Metzgar v. General Refractories and Commonwealth of Pennsylvania, Occupational Disease Fund, No. 1566 C.P. 1986.
Richard T. Kelley, Assistant Counsel, Bureau of Workers' Compensation, for appellant.
John F. Sullivan, Sullivan, Forr, Stokan & Huff, for appellee.
Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.
[ 118 Pa. Commw. Page 356]
The Bureau of Workers' Compensation (BWC) appeals from an order of the Court of Common Pleas of Blair County which imposed one-hundred percent liability on the Commonwealth for Paul J. Metzgar's (Claimant) work-related occupational disease.
Claimant worked for twenty-six years for General Refractories (General). After leaving General on January 6, 1970, Claimant worked as the manager of a camper business which he owned jointly with his son. Claimant also worked between 1973 and 1979 in a ceramics business he owned with his wife.
[ 118 Pa. Commw. Page 357]
On May 10, 1979, Claimant filed for benefits under Section 301(i) of the Pennsylvania Occupational Disease Act (ODA),*fn1 due to silicosis. The referee found that "[t]he claimant was employed in a silica hazard in the Commonwealth of Pennsylvania for a period of 25 years, with multiple employers," that he "was last employed or Page 357} self-employed on May 10, 1979," (emphasis added), and that he "became totally disabled on February 22, 1980 as a result of silicosis. . . ." He then ordered that all of Claimant's compensation be paid by the Commonwealth pursuant to Section 301(g) of the ODA, 77 P.S. § 1401(g).
Section 301(g) provides in pertinent part:
The employer liable for the compensation provided by this article shall be the employer in whose employment the employe was last exposed to the hazard of the occupational disease claimed, regardless of the length of time of such last exposure: Provided, That when a claimant alleges that disability or death was due to silicosis, anthraco-silicosis, coal worker's pneumoconiosis, asbestosis or any other occupational disease which developed to the point of disablement only after an exposure of five or more years, the only employer liable shall be the last employer in whose employment the employe was last exposed to the hazard of such occupational disease during a period of six months or more: And provided further, That in those cases where disability or death is not conclusively proven to be the result of such last exposure, all compensation shall be paid by the Commonwealth. An exposure during a period of less than six months after the effective date of this act shall not be deemed an exposure.
After a series of remands the Workmen's Compensation Appeal Board (Board) "amended" the referee's findings so as to apportion liability for Claimant's compensation of sixty percent to General and forty percent to ...