Appeal from the Order of the Workmen's Compensation Appeal Board in the case of William Brown v. Joseph G. Chamberlain, No. A-75708.
Charles S. Katz, Jr., Swartz, Campbell & Detweiler, for petitioners.
Frank W. Hayes, for respondent, William Brown.
Judges Mencer, Rogers and Palladino, sitting as a panel of three. President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, Williams, Jr., Craig, MacPhail and Palladino. Opinion by Judge Rogers. Judge Wilkinson, Jr. dissents. This decision was reached prior to the expiration of the term of office of Judge Wilkinson, Jr. Dissenting Opinion by Judge Mencer. Judges Williams and Palladino join in this dissent.
Joseph G. Chamberlain and Travelers Insurance Company (employer) appeal from an order of the Workmen's Compensation Appeal Board (Board), which sustained the order of a referee granting the prayer of a petition for modification filed by William Brown (claimant) and awarding total disability benefits.
Mr. Brown was earning $90.00 a week as a carpenter with the employer when he suffered a work-related injury to his left leg on November 9, 1966, on account of which he was paid total disability benefits of $52.50 a week. In December, 1967, the employer filed a petition for modification. After a hearing, a referee, by order dated November 6, 1968, awarded the claimant maximum partial disability benefits of $42.00 per week from August 1, 1967, through December 27, 1967, and thereafter, from December 28, 1967, onward, 13 percent partial disability benefits of $7.80 per week.
In March of 1971, the employer filed a petition for termination. A referee, by order dated May 22, 1974, dismissed the March, 1971, petition for termination and reaffirmed the November 6, 1968 order with the modification that the employer receive credit for payments made for six months during which the claimant was employed. The 350 week partial disability payment period ended April 15, 1974.
On or about December 11, 1974, the claimant filed a petition for modification, alleging that his partial disability had become a total disability as of March 1, 1972.*fn1 By order entered July 26, 1978, the referee agreed and awarded the claimant total disability benefits of $60.00 per week retroactive to March 1, 1972. The Board affirmed, and this appeal followed.
The petitioner contends that the Board erred in affirming the referee's retroactive award of compensation to a time prior to the date of the decision on the last previous petition involving the extent of the claimant's disability in violation of the doctrine of res judicata. The doctrine of res judicata requires a concurrence of four conditions: (1) identity in the thing sued upon or for; (2) identity of the cause of
action; (3) identity of person and parties to the action; and (4) identity of the quality or capacity of the parties suing or sued. Robachiniski v. Workmen's Compensation Appeal Board, 33 Pa. Commonwealth Ct. 89, 92, 380 A.2d 952, 953 (1977). When the referee rendered a decision as of May 22, 1974, on the employer's termination petition of March 5, 1971, the issue was whether the claimant continued to be 13% partially disabled. The referee was not then called upon to decide whether the claimant's disability had increased from 13% partial to total. The issue of this, the claimant's 1974 petition for modification claiming increase of disability ...