Consolidation Coal Co. v. Commonwealth

391 A.2d 14, 37 Pa. Commw. 412, 1978 Pa. Commw. LEXIS 1288
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 5, 1978
DocketAppeals, Nos. 736 and 737 C.D. 1977
StatusPublished
Cited by41 cases

This text of 391 A.2d 14 (Consolidation Coal Co. v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Consolidation Coal Co. v. Commonwealth, 391 A.2d 14, 37 Pa. Commw. 412, 1978 Pa. Commw. LEXIS 1288 (Pa. Ct. App. 1978).

Opinion

Opinion by

Judge Blatt,

Two decisions of the Workmen’s Compensation Appeal Board (Board) have been consolidated for argument here, one awarding death benefits to Bessie L. Stajduhar, widow of George Stajduhar (claimant), and the other suspending disability benefits to the claimant for the period following the filing of his petition until the time of his death.

The claimant filed a petition on October 18, 1974 seeking disability benefits for anthracosilicosis pursuant to Section 108(q) of The Pennsylvania Workmen’s Compensation Act1 (Act), 77 P.S. §27.1(q). Prior to the rendering of a referee’s decision, the claimant died, and his widow filed a separate claim petition alleging that his death was due to anthracosilicosis. The two claims were merged for purposes of hearing, but the referee issued two separate decisions.

With respect to the claim for lifetime benefits, the referee found that the claimant “suffered residual disability due to anthracosilicosis,” but he also found “that the 'aforementioned residual disability due to anthracosilicosis was not in itself totally arid permanently disabling to the claimant nor would said residual disability in itself disabled [sic] the claimant from performing his regular occupation of timberman, in the'absence of the carcinoma which eventually led to [415]*415his demise.” In addition, the referee made the following conclnsions of law:

The claimant having failed to prove that his residual disability due to anthracosilicosis was disabling within the meaning of Sections 306(a) or 306(b) of the Act, as a matter of law must have his prayer for compensation denied.
The defendant having failed to successfully rebutt [sic] the presumption of the claimant’s exposure in a hazardous occupation . . . the claimant is entitled to the benefits provided by the Act.

On the basis of these findings and conclusions of law, the referee “suspended” compensation as of August 8, 1974, but directed the Consolidation Coal Company (Consolidation), the claimant’s employer, to pay certain transcript fees. On appeal by Consolidation, the Board reversed the referee’s award of the transcript fees but affirmed the decision in all other respects. Consolidation has petitioned us to review this decision, docketed at No. 737 C.D. 1977, contending that the Board erred in suspending compensation after having found that the claimant was neither totally nor partially disabled from anthracosilicosis.

Our review of this decision has been complicated by the imprecise language of the referee’s conclusions of law, and it is difficult to determine whether or not an “award” was actually made to the claimant. Nevertheless, we believe that by concluding that the claimant had failed to prove either a total disability within the meaning of Section 306(a) of the Act, 77 P.S. §511, or a partial disability within the meaning of Section 306 (b), 77 P.S. §512, the referee could not, as a matter of law, have made an “award.” Total and partial disability are the only forms of compensable disability recognized by the Act, and we are unable to locate any [416]*416statutory authority for the term, “residual disability” used by the referee. Moreover, we believe that the referee clearly erred in concluding that the claimant was entitled to benefits because the defendant-employer had failed to rebut the presumption of exposure in a hazardous occupation.

Under the provisions of the Act, a claimant seeking compensation for an occupational disease must show two things: (1) that he has sustained “disability or death resulting from such disease [as defined in 77 P.S. §27.1] and occurring within three hundred weeks after the last date of employment in an occupation or industry to which he was exposed to hazards of such disease ...” 77 P.S. §411(2), and (2) that his disease, as a type of “injury,” is one “arising in the course of his employment and related thereto,” 77 P.S. §411(1). If a claimant has been employed at the time of or immediately before his disability in an occupation or industry in which the occupational disease is a hazard, a special provision of the Act, 77 P.S. §413, provides a rebuttable presumption that the disease arose out of his employment. Unless rebutted, the presumption relieves the claimant of the burden of showing a causal relationship between exposure to a hazard and the resulting disability. Workmen’s Compensation Appeal Board v. Commonwealth, 19 Pa. Commonwealth Ct. 499, 338 A.2d 758 (1975). This presumption relates only to the second element of his burden of proof, however, and the claimant must nevertheless prove that he is, in fact, disabled by the disease. The referee found that the claimant here had failed to prove such a disability, and the fact that the employer did not rebut the presumption of hazardous employment cannot, as the referee erroneously concluded, entitle the claimant to benefits. The claimant was clearly not entitled to an “award” of compensation.

[417]*417Inasmuch, as the claimant did not receive an award, the referee also erred in “suspending” compensation. Section 413(a) of the Act, 77 P.S. §772, gives a referee the authority to suspend

a notice of compensation payable, an original or supplemental agreement or an award of the department or its referee . . . upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or that the status of any dependent has changed. . . . And provided further, That where compensation has been suspended because the employe’s earnings are equal to or in excess of his wages prior to the injury that payments under the agreement or award may be resumed at any time during the period for which compensation for partial disability is payable, unless it be shown that the loss in earnings does not result from the disability due to the injury. (Emphasis added.)

In the instant case, the referee found that the claimant had not proven a disability, so no award could have been made to him, and no award could, therefore, be “suspended” by the referee. The Board erred in affirming the referee’s suspension of benefits and we are compelled to reverse its order and to deny the claimant’s petition for benefits during his lifetime.

In the separate decision on the widow’s claim for death benefits, the referee made the following finding of fact:

Your Referee, after a careful study and review of all of the lay and medical testimony presented in this case and the reports and records submitted into evidence finds that the decedent died on July 1, 1975. That the direct cause of [418]*418death was acute bronchopneumonia developing in an atelectatic and fibrotic left lung secondary to pleural carcinomatosis and that bilaterial anthracosilieosis of moderate severity contributed to the demise of the decedent. (Emphasis added.)

Apparently relying upon this finding, the referee concluded that the widow had met her burden of proving “that coalworker’s pneumoconiosis and/or anthracosilicosis contributed to the death of her late husband within the meaning of said Act” (emphasis added) and awarded her benefits as well as funeral expenses and reasonable costs of prosecution.

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Bluebook (online)
391 A.2d 14, 37 Pa. Commw. 412, 1978 Pa. Commw. LEXIS 1288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/consolidation-coal-co-v-commonwealth-pacommwct-1978.