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WITCO-KENDALL CO. v. WORKMEN'S COMPENSATION APPEAL BOARD (ADAMS) (07/12/89)

decided: July 12, 1989.

WITCO-KENDALL CO., PETITIONER,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ADAMS), RESPONDENT



PETITION FOR REVIEW

COUNSEL

Frank R. Fleming, III, Pittsburgh, for petitioner.

Joel Persky, and David P. Chervenick, Henderson & Goldberg, Pittsburgh, for respondent Noel Adams.

Craig and Barry, JJ., and Blatt, Senior Judge.

Author: Barry

[ 127 Pa. Commw. Page 510]

OPINION

Witco-Kendall Company (Employer) petitions for our review of an order of the Workmen's Compensation Appeal Board (Board) which affirmed a decision of the referee awarding benefits to Noel Adams (Claimant) pursuant to Section 108(1) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, added by Act

[ 127 Pa. Commw. Page 511]

    of October 17, 1972, P.L. 930, as amended, 77 P.S. § 27.1(l). We affirm.

The Claimant worked as a truck driver and as a laborer in the yard maintenance department for the Employer from 1963 until 1971. The Employer concedes that he was exposed to an asbestos hazard during this period. The Claimant then bid a job in the Employer's stockroom which he held until March 23, 1983; his last day of work.

On May 5, 1983, the Claimant filed a claim petition alleging total disability from asbestosis. Following a series of hearings the referee awarded total disability benefits finding that the Claimant was totally and permanently disabled due to asbestosis as of August 17, 1983. Further, the referee found that the Claimant's asbestosis was the result of the cumulative effect of his exposure to an asbestos hazard during the course of his entire employment with the Employer.

The Employer appealed to the Board which affirmed the referee's decision. The petition for review to this Court followed.

Our scope of review is limited to a determination of whether an error of law was committed, constitutional rights were violated or necessary findings of fact are not supported by substantial evidence. Russell v. Workmen's Compensation Appeal Board (Volkswagen of America), 121 Pa. Commonwealth Ct. 436, 550 A.2d 1364 (1988). The Employer raises several issues for our review.

First, it argues that the referee erred in awarding benefits for an occupational disease inasmuch as the Claimant had not established that he had met the exposure requirements of Sections 301(c)(2) and 301(d) of the Act. 77 P.S. §§ 411(2) and 412. Section 301(c)(2) provides in pertinent part:

[ 127 Pa. Commw. Page 512]

    whenever 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 Page 512} date of employment in an occupation or industry to which he was exposed to hazards of such disease. . . . The provisions of this paragraph (2) shall apply only with respect to the disability or death of an employe which results in whole or in part from the employe's exposure to the hazard of occupational disease after June 30, 1973 in employment covered by The Pennsylvania Workmen's Compensation Act.

77 P.S. § 411(2) (emphasis added).

Section 301(d) provides:

Compensation for silicosis, anthracosilicosis, coal worker's pneumoconiosis or asbestosis, shall be paid only when it is shown that the employee has had an aggregate period of employment of at least two years in the Commonwealth of Pennsylvania, during a period of ten years next preceding the ...


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