43 Pa. Commw. 454 | Pa. Commw. Ct. | 1979
Opinion by
Claimants Thomas Moran, John T. Shinkus, and Edward Stanley Kuchinsky were employed by Bethlehem Mines Corporation (Bethlehem) for periods of 13, 18, and 20 years respectively prior to retiring and
Bethlehem’s argument that the evidence does not support the referee’s finding that claimants were exposed to silica dust while employees of the mine is without merit.
Bethlehem relies heavily upon Moyer v. Brockway Clay Co., 14 Pa. Commonwealth Ct. 610, 324 A.2d 876 (1974). The factfinder in that case found that the claimant had not been exposed to the alleged hazard, and this Court held that this finding was not the result of a capricious disregard of evidence. In this
Bethlehem’s argument that the evidence does not support the finding that claimants were disabled from silicosis, as opposed to anthracosilicosis, was not raised before either the referee or the Board, and we will not, therefore, consider it on appeal. Pa. R.A.P. No. 1551(a). Accordingly, we will affirm the award of benefits.
The Board, in its decisions in the Moran and Kuchinsky cases, while affirming the referee’s awards of benefits, remanded the cases to the referee for the purpose of determining Bethlehem’s subrogation rights pursuant to Section 319 of The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §671. The Board, however, refused to so remand the Shinkus case. We fail to perceive any basis in the record for treating the Shinkus case differently than the others; accordingly, we will direct the Board to remand that case to the referee as well.
Order
And Now, this 21st day of June, 1979, the orders of the Workmen’s Compensation Appeal Board at Nos. 1665 C.D. 1978 and 1667 C.D. 1978, both of which are dated June 22, 1978, are hereby affirmed, and the records in those cases are therefore remanded to the referee for further proceedings consistent with said orders. At No. 1666 C.D. 1978, the order of the Workmen’s Compensation Appeal Board, dated June 22, 1978, insofar as it affirms the decision of the referee granting compensation to John T. Shinkus, is hereby affirmed. The record in the latter case is hereby re
Although the referee did not include this finding as one of his numbered findings of fact, factual statements in his discussion may be treated as findings of fact. See Reasner v. Workmen’s Compensation Appeal Board, 36 Pa. Commonwealth Ct. 292, 295, 387 A. 2d 679, 681 (1978).