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JOSEPH A. KOSEK v. COMMONWEALTH PENNSYLVANIA (12/30/81)

decided: December 30, 1981.

JOSEPH A. KOSEK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND MATHIES COAL COMPANY, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph A. Kosek v. Mathies Coal Company and Commonwealth of Pennsylvania, No. A-72914.

COUNSEL

Ronald J. Zera, with him Lawrence R. Chaban and Kenneth J. Yablonski, for petitioner.

Thomas C. Reed, with him R. Henry Moore, Rose, Schmidt, Dixon, Hasley, Whyte & Hardesty, and Daniel L. Fassio, for respondents.

Judges Mencer, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 63 Pa. Commw. Page 498]

This is an appeal by claimant Joseph A. Kosek from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision denying him occupational disease benefits under The Pennsylvania Workmen's Compensation Act (Act).*fn1

The claimant was employed in the coal mining industry for a period of forty-two (42) years. For the last twenty (20) years of this period, he was employed by Mathies Coal Company, his last day of work being August 31, 1973. On November 6, 1973 he filed a claim petition wherein he alleged that he had become totally

[ 63 Pa. Commw. Page 499]

    and permanently disabled as a result of coal miner's pneumoconiosis on August 31, 1973. A referee subsequently disallowed the claim, finding that there was no evidence of pneumoconiotic disease process in claimant, that claimant was not totally and permanently disabled from silicosis, anthracosilicosis or pneumoconiosis, and that claimant was not partially disabled as a result of these occupational diseases. Claimant appealed to the Board, which upheld the referee's determination and dismissed the appeal. No further appeal was taken from the Board's action on this claim.

In December of 1976, claimant filed a second claim petition, again alleging that he had become totally and permanently disabled as a result of exposure to coal dust. In this petition, however, claimant alleged November 6, 1976 as the date of disability. On February 1, 1977 a hearing was held before the same referee who had denied the prior claim petition. At that time, claimant offered new medical testimony in support of his second petition. On March 7, 1977 the referee dismissed the second claim petition, finding that the same was barred by the doctrine of res judicata. The Board affirmed, concluding that the referee's finding in the prior proceeding that claimant was not disabled was binding upon it.

Under the doctrine of res judicata, an adjudication will control the disposition of a subsequent proceeding only if there is a concurrence of four conditions: (1) identity of the thing sued on or for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality or capacity of the parties sued or being sued. Robachinski v. Workmen's Compensation Appeal Board, 33 Pa. Commonwealth Ct. 89, 380 A.2d 952 (1977). We believe that, under the facts of the instant case, the second of these four conditions has not been met.

[ 63 Pa. Commw. Page 500]

An identity of cause of action is present for purposes of res judicata when, in both the prior and subsequent proceedings, the subject matter and the ultimate issues are the same. McCarthy v. Township of McCandless, 7 Pa. Commonwealth Ct. 611, 300 A.2d 815 (1973). The subject matter of a claim petition alleging disability because of pneumoconiosis is the state of a claimant's health at a given time, with the ultimate issue being whether or not the claimant is disabled ...


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