Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph R. Stortz v. No. 1 Contracting Corporation and Commonwealth of Pennsylvania, No. A-72202.
Lawrence W. Dague, with him David A. Ody, Assistant Attorney General, for petitioner.
Anthony P. Sidari, for respondent, Joseph R. Stortz.
Joseph P. Lenahan, with him Lenahan, Dempsey & Murphy, for respondent, No. 1 Contracting Corporation.
Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 36 Pa. Commw. Page 466]
The Department of Labor and Industry, Commonwealth of Pennsylvania (Department) appeals a final
[ 36 Pa. Commw. Page 467]
order by the Workmen's Compensation Appeal Board (Board) which redetermined the apportionment of payments and the date of disability in a referee's award of compensation for occupational disease under The Pennsylvania Workmen's Compensation Act (Act).*fn1 Because the findings are inadequate for purposes of appellate review, we must remand this case for further findings.
On June 4, 1974 the claimant filed a petition for compensation under the Act alleging total disability due to anthraco-silicosis. After hearings, the referee awarded compensation finding (1) the claimant had become permanently and totally disabled due to anthraco-silicosis on June 4, 1974 and (2) that the claimant had given notice of this disability to his employer by means of the petition filed on June 4, 1974. The referee's order apportioned liability at 25 per cent against the Commonwealth and 75 per cent against the employer. On appeal by the employer, the Board in its opinion found a "mistake when dictating or typing the award" had been made both in determining the date of disability and in apportioning liability. The Board then issued an amended order reversing the apportionment as against the employer and Commonwealth*fn2 and directing payments to be made from the date of disability it set, i.e., November 6, 1973, the date established by the claimant's physician.
None of the parties to this appeal challenge the Board's order with respect to the change in the apportionment of liability. There is dispute, however, as to the corollary determination of the date of disability and the effect of this redetermination upon the time limitations to perfect a claim under Section 311 of the Act, 77 P.S. § 631.
[ 36 Pa. Commw. Page 468]
The Department first argues that by redetermining the date of disability the Board made a new finding of fact in contravention of the rule in Universal Cyclops Steel Corp. v. Krawczynski, ...