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TONY MANGINE v. WORKMEN'S COMPENSATION APPEAL BOARD (CONSOLIDATED COAL COMPANY) (02/13/85)

decided: February 13, 1985.

TONY MANGINE, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CONSOLIDATED COAL COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Tony Mangine v. Consolidation Coal Company, No. A-85190.

COUNSEL

Jerome W. Kiger, Grogan, Graffam, McGinley, Solomon & Luccrino, for petitioner.

George Stipanovich, Strassburger, McKenna, Messer, Shilobod & Gutnick, for respondent, Consolidated Coal Company.

Judges MacPhail, Doyle and Palladino, sitting as a panel of three. Opinion by Judge MacPhail. This decision was reached prior to the resignation of Judge Williams, Jr.

Author: Macphail

[ 87 Pa. Commw. Page 544]

This is the appeal of Tony Mangine (Appellant) from the order of the Workmen's Compensation Appeal Board (Board) quashing Appellant's appeal and remanding the case to the referee.

On November 21, 1980, Appellant filed a claim petition under Section 108, the occupational disease section, of The Pennsylvania Workmen's Compensation Act, (Act) Act of June 2, 1915, P.L. 736, as amended, added by Act of October 17, 1972, P.L. 930, 77 P.S. § 27.1, alleging total disability due to pneumoconiosis and/or anthracosilicosis (commonly known as black lung disease) and their sequelae contracted in the 43

[ 87 Pa. Commw. Page 545]

    years he worked as a coal miner. At a hearing held on September 22, 1982, Appellant orally moved to be allowed to amend his claim petition to assert that his disability resulted from a heart attack suffered at work on November 22, 1977. The referee denied Appellant's motion to amend, and directed the Appellant to proceed with his original claim. Appellant appealed from that order to the Board. The Board quashed the appeal and remanded the case to the referee for proceedings on the merits. This appeal followed.

The Board concluded that the order of the referee denying the amendment was interlocutory and therefore unappealable. The Board also held that the referee correctly decided that the amendment of the claim petition should not be allowed because its effect would be to permit Appellant to assert a new cause of action after the expiration of the statute of limitations provided in Section 315 of the Act, 77 P.S. § 602.

An order of the Board remanding a case to a referee is generally considered interlocutory and therefore unappealable. Murhon v. Workmen's Compensation Appeal Board, 51 Pa. Commonwealth Ct. 214, 414 A.2d 161 (1980). Although exceptions to this rule previously existed,*fn1 this Court has since held that the existence of the exceptions was "counterproductive. . . . [A] remand order of the Board is interlocutory and unappealable as a matter of right, without exception." Alan Wood Steel Co. v. Workmen's Compensation Appeal Board (Adams), 74 Pa. Commonwealth Ct. 230, 231-32, 459 A.2d 887, 887 (1983), quoting

[ 87 Pa. Commw. Page 546]

    claimant filed a petition under The Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, §§ 1201-1603 claiming total disability due to silicosis, and later amended the original petition to proceed under the Act again alleging total disability due to silicosis. Reasoning that "because the facts of the disability underlying this case and the proof necessary to sustain this claim are the same, whether the claim is considered under [The Occupational] Disease Act or [The Pennsylvania Workmen's] Compensation Act," we allowed the amendment. Findlay, 52 Pa. Commonwealth Ct. at 460, 415 A.2d at 1273. Similarly, in Anthra Textile, Inc., we allowed an amendment of a claim petition from one under The Occupational Disease Act for total disability due to byssinosis (brown lung disease) to one under the Act alleging the same disease. We stated that the "original filing under The Occupational ...


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