Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph Kolar v. Armco Steel Corporation, No. A-72598.
John J. Petrush, Petrush & Miller, Ltd., for petitioner.
William R. Caroselli, McArdle, Caroselli, Spagnolli & Beachler, for respondent, Joseph Kolar.
Judges Blatt, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.
[ 60 Pa. Commw. Page 197]
The petitioner, Armco Steel Corporation, appeals the decision of the Workmen's Compensation Appeal Board (Board) which granted benefits to the claimant, Joseph Kolar, for total disability resulting from an occupational disease under Section 108(n) of the Pennsylvania Workmen's Compensation Act.*fn1
The claimant was employed by the petitioner from April of 1934 until February 8, 1976, in a hot mill, which produced seamless steel pipe and where, as the referee found, he was exposed to the hazards of dusts from coal, graphite, chrome, manganese and nickel used in the production of the pipe. The claimant had developed a breathing problem in 1974 causing him to terminate his employment in February of 1976, and he subsequently filed a claim petition on January 12, 1977, alleging that he had become totally disabled on October 12, 1976, as a result of exposure to harmful gases and dust in the course of his employment. A number of hearings were held at which testimony was taken and medical depositions were introduced and the referee rendered his decision on December 30, 1977, denying benefits. That determination was upheld by the Board, but no appeal was filed with this Court. The claimant filed a second claim in January of 1979, alleging a different date of injury, January 26, 1979, and claiming that his occupational exposure to deleterious gases and dust had aggravated a pre-existing condition resulting in his total disability. A hearing was held at which another medical deposition was presented and the referee this time granted benefits. The Board upheld that decision and this petition for review followed.
The petitioner contends that the second claim petition should have been barred by res judicata, because,
[ 60 Pa. Commw. Page 198]
in the first decision, the referee found that the claimant was totally disabled but that such disability was not a result of his exposure to occupational hazards and it is argued that such a finding is conclusive on the issue of causation in subsequent proceedings. Alternatively, it is argued that there was not sufficient competent evidence to support the referee's findings*fn2 because the opinion of the medical witness upon which he relied was not based upon facts in the record and was incredible because that witness was biased.*fn3
The principle of res judicata has been applied in workmen's compensation cases and it generally requires that four conditions must be met in order to decide that a proceeding is controlled by an earlier adjudication: (1) identity of the thing sued upon or for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or sued. Robachinski v. Workmen's Compensation Appeal Board, 33 Pa. Commonwealth Ct. 89, 380 A.2d 952 (1977). Under the facts of this case, we do not believe that the second of these four elements has been met here.
An identity of causes of action exists when in both the prior and the subsequent ...