Appeal 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-71583.
John R. Lenahan, Jr., with him Joseph A. Murphy, and Lenahan, Dempsey & Murphy, for petitioner.
Thomas J. Sharkey, with him Joseph J. Ustynoski, Thomas J. Carlyon, and Falvello, Ustynoski, Giuliani & Bernstein, for respondent.
Sandra S. Christianson, Assistant Attorney General, for Commonwealth.
Judges Crumlish, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 35 Pa. Commw. Page 479]
The City of Hazleton (City) has appealed the decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of benefits to Anthony M. DeCusatis (Claimant) under the provisions of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq.
Claimant was employed by the City as a fireman for over 21 years and served as its Fire Chief during the 14 months of his employment preceding his resignation, which became effective January 31, 1974. On April 8, 1974, he filed a claim petition under The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq., alleging that he had been totally disabled by emphysema, an occupational disease compensable under Section 108(o) of that Act, 77 P.S. § 1208(o).*fn1 Following
[ 35 Pa. Commw. Page 480]
a hearing at which testimony was given by Claimant, two of his fellow firemen, a physician for Claimant, and a physician for the City, the referee rendered his decision awarding benefits under the Workmen's Compensation Act. The referee found that on February 1, 1974, Claimant, after four or more years of service in fire fighting for the benefit or safety of the public, had become totally disabled by heart and lung disease caused by heat, smoke, fumes and gases, and by his stressful experiences as a firefighter, and that his exposure to smoke, fumes, and gases after June 30, 1973, had contributed to his disease and disability.
The City appealed to the Board on the grounds that the evidence did not support the findings, that the post-June 1, 1973 exposure was insignificant, and that Claimant's medical evidence was incompetent. The Board amended the date of disability from February 1, 1974 to March 25, 1974, the date Claimant's doctor found him totally disabled, but otherwise affirmed the award. In the course of its opinion, the Board stated that the award of benefits had been made under Section 108(o) of the Workmen's Compensation Act, 77 P.S. § 27.1(o).*fn2 When the City appealed the case to us on the same grounds raised before the Board, we refused to consider the merits because we held that
[ 35 Pa. Commw. Page 481]
the Board had erred as a matter of law in awarding benefits under the Workmen's Compensation Act when the claim petition had been filed under the Occupational Disease Act. Workmen's Compensation Appeal Board v. City of Hazleton, 21 Pa. Commonwealth Ct. 522, 347 A.2d 332 (1975). We said that, while Section 444 of the Workmen's Compensation Act, 77 P.S. § 1000, provides that a claim may be brought under either statute or under both in the alternative, the choice is the Claimant's 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." We then remanded to the Board "for a proper determination under the Occupational Disease Act" and ordered "that this matter be remanded to the Workmen's Compensation Appeal Board for processing in a manner not inconsistent with" our opinion. On remand, the Board remanded the case to the referee to allow Claimant to amend the claim petition from one under the ...