Opinion
Argued September 12, 1975
November 6, 1975.
Workmen's compensation — The Pennsylvania Occupational Disease Act, Act 1939, June 21, P.L. 566 — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Conversion of claim under one statute to claim under another — Appellate jurisdiction.
1. When a claim for benefits is filed under The Pennsylvania Occupational Disease Act, Act 1939, June 21, P.L. 566, workmen's compensation authorities cannot unilaterally convert such claim to one under The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736. [523-4]
2. Appeals from action of the Workmen's Compensation Appeal Board in cases under The Pennsylvania Occupational Disease Act, Act 1939, June 21, P.L. 566, must be taken to the appropriate court of common pleas and cannot be taken directly to the Commonwealth Court of Pennsylvania. [524]
Argued September 12, 1975, before President Judge BOWMAN and Judges KRAMER and MENCER, sitting as a panel of three.
Appeal, No. 330 C. D. 1975, from the Order of the-Workmen's Compensation Appeal Board in case of Anthony M. DeCusatis v. City of Hazleton and Commonwealth of Pennsylvania, No. A-69270.
Petition with Department of Labor and Industry for disability benefits. Benefits awarded. Employer appealed to the Workmen's Compensation Appeal Board. Award affirmed as amended. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
Joseph A. Murphy, with him Anthony J. Piazza, John R. Lenahan, and Lenahan, Dempsey Murphy, for appellant.
Thomas J. Sharkey, with him Joseph J. Ustynoski, Thomas J. Carlyon, Falvello, Ustynoski, Giuliani Bernstein, and James N. Diefenderfer, for appellees.
David A. Ody, Assistant Attorney General, for amicus curiae, Commonwealth.
This is an appeal by the City of Hazleton from an order of the Workmen's Compensation Appeal Board, which affirmed an order of the referee granting workmen's compensation benefits to Anthony M. DeCusatis. We must remand this case because the Board erred as a matter of law by awarding benefits under the Pennsylvania Workmen's Compensation Act when DeCusatis had filed a claim for benefits under the Pennsylvania Occupational Disease Act.
Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 1 et seq.
Act of June 21, 1939, P.L. 566, as amended, 77 P. S. § 1201 et seq.
Although DeCusatis filed a claim petition for benefits under the Occupational Disease Act, both the referee and the Board awarded benefits under the Workmen's Compensation Act. Both the referee and the Board erred.
Victims of occupational diseases are now permitted, in certain cases, to seek benefits under the Workmen's Compensation Act, but that Act and the Occupational Disease Act remain separate and distinct statutes. An employe may seek benefits under either statute or under both in the alternative. The decision to seek benefits under one statute or the other belongs to the claimant, and neither a referee nor the Board may unilaterally change a claim under one statute to a claim under the other. A claimant would, of course, be permitted to amend his own claim petition.
See Sections 108 and 301(c)(2) of the Workmen's Compensation Act, 77 P. S. § 27.1 and § 411(2).
Barbieri, Pennsylvania Workmen's Compensation and Occupational Disease, § 7.01(2) (1975).
Section 444 of the Workmen's Compensation Act, 77 P. S. § 1000.
Workmen's Compensation Appeal Board v. Wlodarczyk, 21 Pa. Commw. 495, 347 A.2d 763 (1975).
DeCusatis' petition in this case makes claim under the Occupational Disease Act only, and, therefore, the sole issue involved is whether DeCusatis is eligible for benefits under that statute. We hold that the referee and the Board erred by awarding benefits under the Workmen's Compensation Act.
It is tempting to decide this case on its merits, but this Court is without jurisdiction because appeals from the Board under the Occupational Disease Act must be taken to a court of common pleas. This matter must be remanded to the Board for a proper determination under the Occupational Disease Act, after which either or both parties may take an appeal to the proper court under the provisions of the proper statute.
Section 427 of the Occupational Disease Act, 77 P. S. § 1527.
In accordance with the above, we therefore
ORDER
AND NOW this 6th day of November, 1975, the order of the Workmen's Compensation Appeal Board, dated February 20, 1975, is hereby reversed, and it is ordered that this matter be remanded to the Workmen's Compensation Appeal Board for processing in a manner not inconsistent with the above opinion.