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SPLIT VEIN COAL COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (ERDMAN) (04/06/89)

decided: April 6, 1989.

SPLIT VEIN COAL COMPANY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ERDMAN), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Charles M. Erdman v. Split Vein Coal Company, No. A-93202.

COUNSEL

Alan P. Schoen, Lenahan & Dempsey, P.C., for petitioner.

Lester Krasno, Law Offices of Lester Krasno, for respondent, Charles M. Erdman.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 124 Pa. Commw. Page 643]

Split Vein Coal Company (petitioner) petitions for our review of the order of the Workmen's Compensation Appeal Board (Board) affirming the referee's award of benefits to Charles M. Erdman (claimant). We will affirm.

The claimant worked for over 30 years in the coal-mining industry, and he last worked for the petitioner. Although the details are sketchy, it appears that in August of 1980, the claimant applied for federal black lung benefits and quit work. He subsequently filed a claim petition for workmen's compensation benefits on July 6, 1982, alleging that he became totally disabled on August 15, 1980 due to anthracosilicosis caused by exposure to dust and other particulate matter in his employment in the coal-mining industry. He further alleged that the petitioner was served notice of the disability in August of 1980 through the claimant's filing of the claim petition for federal black lung benefits. On July 26, 1982, the claimant was examined by Dr. David C. Scicchitano, who diagnosed him as suffering from anthracosilicosis.

Two evidentiary hearings were held before Referee Joseph R. Kowitski. The claimant testified on January 11, 1983, and Dr. Scicchitano testified by telephone on July 7, 1983. Dr. Scicchitano testified that, in his opinion, the claimant is totally disabled due to anthracosilicosis as of the date of his first pulmonary function studies, which was July 26, 1982. Referee Kowitski then filed a decision on January 26, 1984 finding that the claimant is totally disabled by coal worker's pneumoconiosis as of July 26,

[ 124 Pa. Commw. Page 6441982]

. The referee specifically stated that this finding is based on the testimony of Dr. Scicchitano, and that he found the testimony of the claimant to be credible and that of Dr. Scicchitano to be credible and competent. The referee also found that:

[The claimant] last worked with Split Vein Coal Company on August 28, 1980 and separated therefrom because of shortness of breath and the receipt of his Federal Black Lung Award. Notice was given to Split Vein by its receipt of the federal Black Lung application and decision.

Referee Kowitski's decision at 2, Reproduced Record (R.R.) at 58a. Referee Kowitski concluded that the claimant had met his burden of proving that he was disabled due to his work in the coal-mining industry and that he is entitled to benefits.

The petitioner appealed this decision to the Board, arguing that it had not received adequate notice of the claimant's disability, and that the referee had therefore erred. It further argued that the referee erred in concluding that the claimant's application for federal black lung benefits constituted adequate notice in this workmen's compensation case. The Board remanded the matter to the referee for further fact finding as to when the claimant knew, or should have known, that he was disabled by an occupational disease, ...


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