Opinion
Argued December 5, 1975
March 10, 1976.
Workmen's compensation — Petition for occupational disease benefits — 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.
1. When a petition for benefits is filed under The Pennsylvania Occupational Disease Act, Act 1939, June 21, P.L. 566, the proceedings related thereto are controlled by that statute, and the claim cannot be processed and benefits awarded under The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736. [635-6]
Argued December 5, 1975, before Judges CRUMLISH, JR., MENCER and BLATT, sitting as a panel of three.
Appeal, No. 581 C.D. 1975, from the Order of the Workmen's Compensation Appeal Board in case of John A. Bombalek v. Jones Laughlin Steel Corporation and Commonwealth of Pennsylvania, No. A-68959.
Petition with Department of Labor and Industry for occupational disease benefits. Benefits awarded. Employer and Commonwealth appealed to the Workmen's Compensation Appeal Board. Award affirmed. Employer and Commonwealth appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
Raymond F. Keisling, with him Will Keisling, for appellant.
Benjamin L. Costello, with him Kenneth J. Yablonski and James N. Diefenderfer, for appellees.
This is an appeal by the Jones Laughlin Steel Corporation (appellant) from an order of the Workmen's Compensation Appeal Board (Board) which affirmed an order of the referee awarding benefits under The Pennsylvania Workmen's Compensation Act (Workmen's Compensation Act) to John A. Bombalek, claimant and appellee herein. The claimant suffers from coal worker's pneumoconiosis and petitioned for benefits pursuant to the provisions of The Pennsylvania Occupational Disease Act (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.
Benefits for disabilities due to occupational diseases are provided by both the Workmen's Compensation Act and the Occupational Disease Act. These two statutes are separate and distinct. Benefits may be claimed under either of the Acts, or under both in the alternative. This court has held that
"[t]he 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." Workmen's Compensation Appeal Board v. City of Hazleton, 21 Pa. Commw. 522, 347 A.2d 332 (1975).
Although the briefs of both parties refer to the Workmen's Compensation Act, the initial "Claim Petition for Compensation," filed on January 9, 1974, requests relief under the provisions of the Occupational Disease Act. The referee and the Board, however, specifically stated that the award granting benefits to the claimant was made pursuant to the Workmen's Compensation Act. The referee ordered compensation pursuant to Section 305.1 of the Workmen's Compensation Act, 77 P. S. § 411.1, and the Board cited Section 301(e) of the Workmen's Compensation Act, 77 P. S. § 413, in affirming that order. Furthermore, by citing the case of Universal Cyclops Steel Corp. v. Workmen's Compensation Board of Appeal, 9 Pa. Commw. 176, 305 A.2d 757 (1973), the Board indicated that its scope of review was governed by the Workmen's Compensation Act.
A careful review of the record fails to disclose an amendment of the original petition by the claimant. Therefore, as we held in O'Donnell v. City of Scranton, 22 Pa. Commw. 411, 349 A.2d 502 (1975), where a petition is filed originally pursuant to the Occupational Disease Act, the Board must follow the provisions of that statute in its determination of the claim and we must issue the following
ORDER
AND, NOW, this 10th day of March, 1976, the order of the Workmen's Compensation Appeal Board, dated March 14, 1975, is hereby reversed, and it is ordered that this matter be remanded to the Workmen's Compensation Appeal Board for further consideration in a manner not inconsistent with this opinion with authority to receive evidence as the Board, in its discretion, may find necessary and proper.