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ANTHRA TEXTILE v. COMMONWEALTH PENNSYLVANIA (07/29/80)

decided: July 29, 1980.

ANTHRA TEXTILE, INC. ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND BERTHA RINGES, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Bertha Ringes v. Anthra Textile, Inc., No. A-74323.

COUNSEL

Frank L. Tamulonis, Zimmerman, Lieberman & Derenzo, for petitioners.

Lawrence W. Dague, with him Sandra S. Christianson, Assistant Attorney General and Vatche Kaloustian, Assistant Attorney General, for respondent, Workmen's Compensation Appeal Board.

Eugene J. Mirarchi, for respondent Bertha Ringes.

President Judge Crumlish and Judges Mencer, Rogers, Blatt, Craig, MacPhail and Williams, Jr. Judge Wilkinson, Jr. did not participate. Opinion by Judge Rogers. Judge Mencer and MacPhail dissent.

Author: Rogers

[ 53 Pa. Commw. Page 295]

This is the appeal of Anthra Textile, Inc. and its insurer from the order of the Workmen's Compensation Appeal Board (Board) upholding a referee's award of compensation to Bertha Ringes, a former Anthra employee.

On February 20, 1974, Ms. Ringes, who was then not represented by counsel, filed a claim petition under the provisions of The Occupational Disease Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq., for asserted total and permanent disability on account of byssinosis, sometimes called brown lung, contracted in the 45 years of work for various employers in the textile industry. The defendants in the proceedings were Anthra and the Commonwealth of Pennsylvania, the latter pursuant to Section 308 of The Occupational Disease Act, 77 P.S. §§ 1401(g) and 1408.

Several hearings were conducted by the referee from 1974 until 1977. At the fourth and last hearing on July 21, 1977, the referee, over timely objection by employer's counsel, allowed an amendment of the claim petition to one for benefits under The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq., instead of The Occupational Disease Act. The referee awarded Ms. Ringes compensation for total disability. He dismissed the Commonwealth as a party because only employers are obliged to pay compensation for disease when awarded under The Pennsylvania

[ 53 Pa. Commw. Page 296]

Workmen's Compensation Act. Section 301(c) of The Pennsylvania Workmen's Compensation Act, 77 P.S. § 411(2).

Anthra appealed to the Board contending, as it still does, that the amendment of the claim petition from one under The Occupational Disease Act to one under The Workmen's Compensation Act should not have been allowed because the effect was to give compensation for a claim barred by the limitation provided in Section 315 of The Pennsylvania Workmen's Compensation Act, 77 P.S. § 602, which reads in pertinent part:

In cases of personal injury all claims for compensation shall be forever barred, unless within three years after the injury, the parties shall have agreed upon the compensation payable under this article; or unless within three years after the injury, one of the ...


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