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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (01/14/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 14, 1976.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA, JAMES ROY DEROCCO AND WHEELING-PITTSBURGH STEEL CORP.
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLANT

Appeal 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.

COUNSEL

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.

Judges Crumlish, Jr., Kramer and Mencer, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 23 Pa. Commw. Page 2]

The record in this case indicates that the claim petition involved was filed under the Pennsylvania Occupational Disease Act*fn1 and that the petition was never amended. Despite this fact, the referee awarded benefits under the Pennsylvania Workmen's Compensation Act,*fn2 and the Board affirmed.

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.*fn3 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.

We therefore

Order

And Now this 14th day of January, 1976, the order of the Workmen's Compensation Appeal Board in the

[ 23 Pa. Commw. Page 3]

    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.

Disposition

Remanded.


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