Opinion
Argued October 31, 1975
January 14, 1976.
Workmen's compensation — Occupational disease — The Pennsylvania Occupational Disease Act, Act 1939, July 21, P.L. 566 — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Application of proper statute.
1. When a claim petition is filed under The Pennsylvania Occupational Disease Act, Act 1939, July 21, P.L. 566, and is not amended, benefits can be awarded only under that statute and not under The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736. [1]
Argued October 31, 1975, before Judges CRUMLISH, JR., KRAMER and MENCER, sitting as a panel of three.
Appeal, No. 211 C.D. 1975, from the Order of the Workmen's Compensation Appeal Board in case of James Roy DeRocco v. Wheeling-Pittsburgh Steel Corporation and Commonwealth of Pennsylvania, No. A-68958.
Petition with Department of Labor and Industry for occupational disease benefits. Benefits awarded. Employer appealed to the Workmen's Compensation Appeal Board. Award affirmed as amended. Commonwealth appealed to the Commonwealth Court of Pennsylvania. Held: Remanded.
Sandra S. Christianson, Assistant Attorney General, with her David A. Ody, Assistant Attorney General, for appellant. William R. Caroselli, for appellee, DeRocco.
Henry J. Wallace, Jr., with him Reed, Smith, Shaw McClay, for appellee, Wheeling-Pittsburgh Steel Corporation.
James N. Diefenderfer, for appellee, Workmen's Compensation Appeal Board.
The record in this case indicates that the claim petition involved was filed under the Pennsylvania Occupational Disease Act and that the petition was never amended. Despite this fact, the referee awarded benefits under the Pennsylvania Workmen's Compensation Act, and the Board affirmed.
Act of July 21, 1939, P.L. 566, as amended, 77 P. S. § 1201 et seq.
Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 1 et seq.
This case is controlled by our recent decisions holding that the referee and the Board may not award benefits under the Workmen's Compensation Act when a claim petition is filed under the Occupational Disease Act, and never amended. Since the referee and the Board erred by awarding benefits under the Workmen's Compensation Act, we will remand to the Board for a proper determination pursuant to the Occupational Disease Act.
O'Donnell v. City of Scranton, 22 Pa. Commw. 411, 349 A.2d 502 (1975); Workmen's Compensation Appeal Board v. City of Hazleton, 21 Pa. Commw. 522, 347 A.2d 332 (1975); and Workmen's Compensation Appeal Board v. Wlodarczyk, 21 Pa. Commw. 495, 347 A.2d 763 (1975).
We therefore
ORDER
AND NOW this 14th day of January, 1976, the order of the Workmen's Compensation Appeal Board in the above matter is hereby reversed and it is ordered that this case be remanded to the Workmen's Compensation Appeal Board for a proper determination pursuant to the Pennsylvania Occupational Disease Act; such additional evidence may be received as the Board, in its discretion, deems necessary.