Opinion
Argued September 12, 1975
November 5, 1975.
Workmen's compensation — Occupational disease — Conversion of workmen's compensation claim to occupational disease claim — 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 — Date of last exposure — Burden of proof — Accident — Injury.
1. When a claimant files a petition for benefits under The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736, and the petition is not amended, workmen's compensation authorities cannot consider the petition as one filed under The Pennsylvania Occupational Disease Act, Act 1939, July 21, P.L. 566. [506]
2. Occupational disease provisions of The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736, are applicable only to disabilities resulting in whole or in part from exposures to the hazard of the disease after June 30, 1973. [507]
3. Under the facts of this case, the applicant for workmen's compensation benefits must prove that she sustained a compensable accident prior to May 1, 1972 or a compensable injury after May 1, 1972. [507]
Argued September 12, 1975, before President Judge BOWMAN and Judges KRAMER and MENCER, sitting as a panel of three.
Appeal, No. 259 C.D. 1975, from the Order of the Workmen's Compensation Appeal Board in case of Betty J. Costello v. Quaker Shoe Company, No. A-68997.
Petition with Department of Labor and Industry for disability benefits. Benefits awarded. Employer appealed to the Workmen's Compensation Appeal Board. Award reversed. Employe appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
James C. Lanshe, Jr., with him Lanshe, Lanshe and Lanshe, for appellant. John P. Thomas, with him Walker, Thomas, Karess, Lipson Zieger, for appellant, Quaker Shoe Company.
David A. Ody, Assistant Attorney General, for appellee, Commonwealth.
James N. Diefenderfer, for appellee, Board.
This is an appeal by Betty J. Costello from an order of the Workmen's Compensation Appeal Board, which reversed a referee's award of benefits to Costello. We affirm the result reached by the Board.
Costello was employed by the Quaker Shoe Company as a cutter and gluer from January 1972 through November 20, 1972. On March 9, 1973 Costello filed a claim petition under The Pennsylvania Workmen's Compensation Act. After hearings, a referee awarded benefits under the Workmen's Compensation Act. On appeal, the Board decided that Costello had to proceed under the Pennsylvania Occupational Disease Act, rather than the Workmen's Compensation Act. The Board concluded that Costello had failed to meet her burden of proof under the Occupational Disease Act, and, therefore, dismissed Costello's claim petition.
Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 1 et seq.
Act of July 21, 1939, P.L. 566, as amended, 77 P. S. § 1201 et seq.
The Board erred by treating Costello's claim petition as a claim under the Occupational Disease Act. Costello's claim petition specifically sought benefits under the Workmen's Compensation Act. Since the claim petition was never amended, the only issue presented to the referee and the Board was the question of Costello's eligibility for benefits under the Workmen's Compensation Act.
Workmen's Compensation Appeal Board v. Wlodarczyk, 21 Pa. Commw. 495, 347 A.2d 763 (1975).
Costello argues that she deserves benefits because she suffers from asthma which was caused by the inhalation of glue fumes at work. In awarding benefits under the Workmen's Compensation Act, the referee was apparently operating under the misconception that the occupational disease provisions of the Workmen's Compensation Act are applicable in this case. Those provisions apply only to disabilities which result in whole or in part from exposure to the hazard of the occupational disease after June 30, 1973. Costello's last exposure was in November of 1972 and, therefore, the occupational disease provisions of the Workmen's Compensation Act are not applicable.
Sections 108 and 301(c)(2) of the Workmen's Compensation Act, 77 P. S. § 27.1, 411(2).
Section 301(c)(2) of the Workmen's Compensation Act, 77 P. S. § 411 (2).
In order to be eligible for benefits under the Workmen's Compensation Act, Costello had to prove that she suffered either a compensable accident prior to May 1, 1972 or a compensable injury after that date. Costello has not alleged or proven that she suffered such an accident or injury. Since Costello has not sustained her burden of proof, we must affirm the Board's dismissal of her claim petition.
See Act of March 29, 1972, P.L. 159, § 1, effective May 1, 1972, amending Section 101 of the Workmen's Compensation Act, 77 P. S. § 1.
We, therefore
ORDER
AND NOW, this 5th day of November, 1975, the order of the Workmen's Compensation Appeal Board, dated February 6, 1975, dismissing the claim petition of Betty J. Costello, is hereby affirmed.