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LEHIGH VALLEY COAL SALES CO. v. COMMONWEALTH PENNSYLVANIA (04/12/82)

decided: April 12, 1982.

LEHIGH VALLEY COAL SALES CO., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND WALTER L. SWANTEK, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Walter L. Swantek v. Lehigh Valley Coal Sales Company, No. A-78297.

COUNSEL

Joseph P. Lenahan, Lenahan & Dempsey, P.C., for petitioner.

Joseph J. Musto, Griffith, Aponick & Musto, for respondent, Walter L. Swantek.

President Judge Crumlish, Jr. and Judges Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 66 Pa. Commw. Page 61]

Lehigh Valley Coal Sales Co. (Petitioner) has filed this Petition for Review from a decision of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision granting Walter Swantek (Claimant) total disability benefits under The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1066.

Claimant was employed by Petitioner as a tractor trailer driver for a period of at least thirteen years immediately prior to his retirement. During this period of time, Claimant participated in the loading and hauling of coal and silt.*fn1 The place where this loading took place was found by the referee to be very dusty and constituted a hazard. Claimant retired in April of 1975.

On April 3, 1976, Claimant filed a Claim Petition with the Board alleging disability as a result of anthraco-silicosis contracted in his employment for Petitioner. At the time of the hearing on the claim, Claimant moved and was granted permission to amend his claim from that of anthraco-silicosis to bronchiectasis, thus bringing the case under Section 108(n) of the Act, 77 P.S. § 27.1(n), the so-called "omnibus" occupational disease provision.

On November 12, 1976, the referee entered a decision in favor of Claimant. This decision was appealed to the Board by Petitioner, and in an order issued January 4, 1979, the Board vacated the referee's decision and remanded the case for further testimony. On remand, both parties presented further medical testimony. On November 14, 1979, the referee again found in favor of Claimant. This decision

[ 66 Pa. Commw. Page 62]

    was affirmed by the Board on July 17, 1980. It is from this decision that Petitioner appeals.

Petitioner has raised a number of issues upon this appeal, several of which concern the Board's initial remand order.*fn2 Petitioner initially argues that the Claimant was erroneously permitted to amend his claim petition from anthraco-silicosis to bronchiectasis. Petitioner argues that Claimant's failure to amend its petition at the time of a pre-trial conference estopped Claimant from amending his petition. Petitioner has failed to direct our attention to any cases in this regard and our own research discloses that amendments to claim petitions are liberally allowed. See, e.g., Swank Refractories v. Workmen's Compensation Appeal Board, 30 Pa. Commonwealth Ct. 313, 374 A.2d 537 (1977). We see no reason to depart from that standard in this case, particularly since the referee permitted the Petitioner to have Claimant reexamined before its medical expert testified.*fn3 We find no error in this regard.

Petitioner also has maintained that the Claimant failed to comply with the notice*fn4 and limitations period*fn5 provisions of the Act. Petitioner's main contention in this regard concerns record testimony which indicated that Claimant was notified by his doctor, Dr. Butcofski, of the existence of his disease and that he was disabled by it as early as 1972. However, this was three years prior to the time that Claimant retired and we have previously held, ...


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