Appeal from the Order of the Workmen's Compensation Appeal Board in case of Leonard DeMarco v. Jones & Laughlin Steel Corporation, No. A-77667.
James R. Schmitt, Will & Keisling, for petitioner.
Edwin H. Beachler, McArdle, Caroselli, Spagnolli & Beachler, for respondents.
Judges Craig, Barry and Colins, sitting as a panel of three. Opinion by Judge Craig. Judge Colins dissents.
Jones & Laughlin Steel Corporation appeals a decision of the Pennsylvania Workmen's Compensation Appeal Board, which affirmed a referee's award of total disability benefits to Leonard DeMarco. We must determine (1) whether the employer waived its right to assert res judicata as a bar to DeMarco's claim petition and (2) whether res judicata does, in fact, prohibit consideration of DeMarco's petition.
The facts, which are not in dispute, indicate that from 1941 through 1976, Jones & Laughlin employed DeMarco in its seamless tube department; during his employment, DeMarco was exposed to noxious dust and smoke, including coal dust. On March 27, 1976, DeMarco terminated his employment on the advice of his physician, who had diagnosed DeMarco as having respiratory diseases.
DeMarco filed a claim petition on September 3, 1976, alleging that as a result of his work-related exposure to deleterious substances, he had become totally and permanently disabled with respiratory diseases. After several hearings, Referee Laughlin denied the petition, finding "that the claimant has failed to prove that he is disabled on either a partial or total basis due to an occupational disease. . . ." The board affirmed that decision and DeMarco did not appeal further.
On May 17, 1978, DeMarco filed a second claim petition alleging the same date of disability -- August 21, 1976 -- but advancing the new causative theory that his disability was due to work-related aggravation of pre-existing respiratory problems. Referee Laughlin again held hearings, determined that DeMarco was totally disabled as of August 21, 1976 due to aggravation of respiratory disease, and awarded total disability benefits. The board rejected Jones & Laughlin's res judicata argument and affirmed.
DeMarco contends that the employer waived its res judicata argument by failing to present it to the referee, raising it for the first time in its appeal to the board.
Although the record is not clear that the employer failed to present the res judicata claim to the referee,*fn1 the question of the operation of res judicata is one of law. Therefore, the employer's presentation of the issue to the board is sufficient to preserve it for our review because that procedure does not intrude upon the referee's role as the indispensable finder of fact. Section 418 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as ...