Appeal from the Order of the Workmen's Compensation Appeal Board in case of Charles W. Savercool v. Lookout Volunteer Fire Company, No. A-72806.
William M. Thomas, with him John P. Thomas, Wilbur C. Creveling, Jr. and David L. White, Thomas & Hair, for petitioner.
Renald S. Baratta, for respondents.
Judges Wilkinson, Jr., MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge MacPhail. Judge Williams, Jr. dissent.
[ 53 Pa. Commw. Page 529]
Lookout Volunteer Fire Company (Employer) has appealed from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of benefits to Charles W. Savercool (Claimant) for total disability resulting from a heart attack that occurred on January 10, 1972 while Claimant was present at the fire company. We reverse.
[ 53 Pa. Commw. Page 530]
The Claimant filed a claim for benefits under The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq. on February 4, 1972. The claim alleged that the occupation of volunteer fireman had caused Claimant who was then 32 years old to suffer from heart disease. Both the Employer and the Commonwealth filed answers to the claim.*fn1
The referee held hearings in this matter on September 13, 1972 and March 20, 1973. At the second hearing, a stipulation dismissing the claim against the Employer was noted. The Commonwealth stated on record that it would not oppose the claim for benefits and the referee stated that an order would be entered against the Commonwealth.
The next activity of record is a hearing on November 26, 1973 at which the Commonwealth moved for dismissal of the claim for failure to prosecute.*fn2 This motion was held in abeyance by the referee. The Employer was not notified of this hearing.
On January 10, 1974 the final hearing was held, also without notice to the Employer. Claimant presented his medical testimony and moved to amend the claim under the Occupational Disease Act to proceed under The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq.
On January 28, 1974, the referee dismissed the claim for benefits under the Occupational Disease Act and denied ...