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PENN STEEL FOUNDRY AND MACHINE COMPANY AND STATE WORKMEN'S INSURANCE FUND v. WORKMEN'S COMPENSATION APPEAL BOARD (WAGNER) (12/16/88)

decided: December 16, 1988.

PENN STEEL FOUNDRY AND MACHINE COMPANY AND STATE WORKMEN'S INSURANCE FUND, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (WAGNER), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of David Wagner, Deceased, Ruth R. Wagner, Widow v. Penn Steel Foundry & Machine Company, No. A-91289.

COUNSEL

Frederick H. Hobbs, for petitioner, Penn Steel Foundry and Machine Company.

Frank L. Tamulonis, Jr., Zimmerman, Lieberman & Derenzo, for respondents, David Wagner, Deceased, by Ruth R. Wagner, Widow.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Judge MacPhail did not participate in the decision in this case. Dissenting Opinion by Judge Doyle.

Author: Kalish

[ 122 Pa. Commw. Page 173]

Penn Steel Foundry and Machine Company (employer) seeks review of the opinion and order of the Workmen's Compensation Appeal Board (Board), affirming the referee, which granted the fatal claim petition of the claimant, Ruth R. Wagner. We affirm.

Claimant seeks compensation for the death of her husband, David Wagner (decedent), alleging that he died as a direct result of an occupational disease.

The employer contends that the fatal claim petition should fail because decedent's death did not occur within 300 weeks of the last exposure, pursuant to section 301(c)(2) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(2).

Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

In workmen's compensation, at an early date, our legislature made provisions for death benefits payable to a widow, provided death from the disease occurred within three years of the last exposure.

Since then, the Act has been amended. Section 301(c) of the Act, 77 P.S. § 411(2), now provides:

Whenever occupational disease is the basis for compensation, for disability or death under this act, it shall apply only to disability or death

[ 122 Pa. Commw. Page 174]

    resulting from such disease and occurring within three hundred weeks after the last employment in an occupation to which he was exposed to hazards of such disease: And provided further, That if the employe's compensable disability has occurred within such a period, his subsequent ...


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