27 Pa. Commw. 568 | Pa. Commw. Ct. | 1976
Opinion by
This is an appeal by Garden Coal Company and its insurance carrier (appellants) from a decision of the Workmen’s Compensation Appeal Board (Board). On October 10, 1974, the claimant, Russell Ateon, filed a petition pursuant to Section 108(q) of The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §27.1(q), claiming compensation for total disability resulting from coal-worker’s pneumoconiosis. After a hearing, the referee awarded the claimant total disability benefits, of which 25% were to be paid by appellants and 75% by the Commonwealth of Pennsylvania.
The referee made the following findings of fact, which read in pertinent part:
9. That the claimant was examined by Dr. Russel Boykiw ... on August 13, 1974, and a copy of Dr. Boykiw’s medical report dated September 10, 1974, along with an x-ray and pulmonary function studies were offered into evidence without objection. Dr. Boykiw concluded that the claimant ‘is totally disabled because of pulmonary fibrosis resulting from coal dust and secondarily pulmonary emphysema.’
12. That after considering all of the testimony and medical evidence presented, your ref*570 eree finds as a fact that the claimant has been totally and permanently disabled since August 13, 1974, because of coal worker’s pneumoconiosis____
13. That the claimant first learned the cause of his disability on September 10, 1974. . . .
15. That on January 9, 1974, the claimant filed a Claim Petition under Section 301-i of the Pennsylvania Occupational Disease Act, and an award was made for total disability at the rate of $100.00 per month beginning August 13, 1974. . . .
On appeal, the Board, without taking additional evidence, affirmed the referee’s decision; however, pursuant to Section 305.1 of the Act, 77 P.S. §411.1 and based upon referee’s finding of total disability as of August 13, 1974, the Board reassessed the liability for compensation to 50% to be paid by appellants and 50% by the Commonwealth.
In this appeal, there is no dispute as to the claimant’s total disability. The sole issue raised is whether the Board committed error in modifying payment
Appellants contend that finding number 15 establishes the claimant’s knowledge of his total disability on or before January 9, 1974, when he filed his 301 (i) petition and averred therein his total disability. January 9th, they argue, should be the date of disability insofar as contributions between themselves and the Commonwealth are concerned.
The appellants’ arguments are susceptible to two interpretations. It is not clear which of these is relied upon, therefore we will deal with both. The first possible interpretation of appellants’ argument is that the date of disability for the purpose of determining the allocation of percentages is not necessarily the same date upon which the claimant is entitled to compensation for total disability; the former being January 9, 1974, and the latter being August 13, 1974.
The Commonwealth’s obligation to pay a part of the compensation is an assumed gratuity in relief of the employer, and, as such, the extent of that obliga
The second possible interpretation of appellants’ argument is that, while the date of disability for allocating percentages is the same date as that upon which the claimant became entitled to compensation, this date should be January 9 and not, as the referee found, August 13. Appellants contend that it was an error of law for the referee to utilize the date of medical confirmation of claimant’s disability (August 13) and not the date, as evidenced in the 301 (i) petition, upon which claimant had “knowledge” of his disability (January 9). We cannot agree. It is certainly true that the claimant knew of his poor state of health when he filed his petition under Section 301(i) of The Pennsylvania Occupational Disease Act,
Accordingly we enter the following
Order
And Now, this 16th day of December, 1976, the decision of the Workmen’s Compensation Appeal Board,
It is further ordered that the Commonwealth of Pennsylvania is entitled to credit for any payments under the Award for 301 (i) benefits under Claim Petition No. 170-14-5159 paid or payable after October 10, 1974.
Section 305.1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §411.1 provides:
Any compensation payable under' this act for silicosis, anthraco-silicosis or coal-worker’s pneumoconiosis as defined in section 108(q) for disability occurring on or after July 1, 1973 or for death resulting therefrom shall be paid as follows: if the disability begins between July 1, 1973 and June 30, 1974, inclusive, the employer shall pay twenty-five per centum and the Commonwealth seventy-five per centum; if the disability begins between July 1, 1974, and June 30, 1975, inclusive, the employer shall pay fifty per centum and the Commonwealth fifty per centum; if the disability begins between July 1, 1975 and June 30, 1976, inclusive, the employer shall pay seventy-five per centum and the Commonwealth twenty-five per centum; and if the disability begins on or after July 1, 1976, all compensation shall be payable by the employer. The procedures for payment of compensation in such cases shall be as prescribed in the rules and regulations of the department.
As noted in the opinion of the Board, the beginning date of the award, October 10, 1974, was in error. Under Section 306(d) of the Act, 77 P.S. §514, the beginning date of the award should have been August 13, 1974. However, the claimant did not appeal on that point and it is mentioned here only to avoid confusion regarding the date upon which the claimant became entitled to compensation.
Act of June 21, 1939, P.L. 566, as amended, 77 P.S. §1401 (i).
It is to be noted that under Section 311 of the Act, 77 P.S. §631, compensation is disallowed in occupational disease eases if the claimant fails to give notice to his employer within 120 days after he knows, or by the exercise of reasonable diligence should have known, of the existence of a disability and its possible relationship