Appeal from the Order of the Workmen's Compensation Appeal Board in case of Carl Wetzel v. Sullivan Trail Mfg. Co., No. A-82441.
James E. Pocius, Lenahan & Dempsey, for petitioner.
Thomas K. Noonan, Noonan & Noonan, for respondents.
President Judge Crumlish, Jr., and Judges MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Doyle.
[ 80 Pa. Commw. Page 145]
This is an appeal by the Sullivan Trail Manufacturing Company (Sullivan) of an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of benefits to Carl Wetzel for total disability under Section 108 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of the Act of October 17, 1972, P.L. 930, as amended, 77 P.S. § 27.1. We affirm.
On January 27, 1974, Wetzel, who had worked for Sullivan for twenty years in the mining industry, filed a Claim Petition alleging total disability due to exposure to a silica hazard. Following a hearing, compensation
[ 80 Pa. Commw. Page 146]
was denied and on appeal that denial was sustained by the Board.
On July 14, 1977, Wetzel filed a new Claim Petition alleging that he became totally disabled due to anthracosilicosis on March 15, 1977. Following a hearing, benefits were granted. On appeal, the Board remanded for clarification of the referee's decision, and, following two more hearings, benefits were again awarded. On appeal, the Board affirmed. Petition for review by this Court followed.
Before this Court, Sullivan argues that the referee and the Board erred in failing to dismiss the second Claim Petition;*fn1 Sullivan urges that Wetzel failed to overcome the legal effect of the denial of the first occupational disease claim.
In Robachinski v. Workmen's Compensation Appeal Board, 33 Pa. Commonwealth Ct. 89, 380 A.2d 952 (1977) we held that, because of the progressive nature of anthracosilicosis, the denial of a claim petition for an occupational disease does not necessarily preclude the filing of subsequent claims.
Sullivan concedes that Robachinski is controlling in the case at bar but argues that the referee erred in awarding benefits without a finding that Wetzel's condition had worsened since the denial of the first claim petition. We disagree; Robachinski requires no such finding. Our opinion in Robachinski noted that the subject matter of a claim petition is the state of the claimant's health at a given time, and whether or ...