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MIKE BARNA v. WORKMEN'S COMPENSATION APPEAL BOARD (ROCHESTER & PITTSBURGH COAL COMPANY) (HEYL & PATTERSON CONSTRUCTION COMPANY) (SHENANGO (02/06/87)

decided: February 6, 1987.

MIKE BARNA, JR., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ROCHESTER & PITTSBURGH COAL COMPANY) (HEYL & PATTERSON CONSTRUCTION COMPANY) (SHENANGO, INC.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Mike Barna, Jr. v. Rochester & Pittsburgh Coal Company, and Heyl & Patterson Construction Company and Shenango, Inc., No. A-89868.

COUNSEL

Timothy P. Creany, Pawlowski, Creany & Tulowitzki, for petitioner.

Paul E. Sutter, Tillman & Thompson, for respondent, Rochester and Pittsburgh Coal Company.

Judith H. Veres, William K. Herrington & Associates, for respondent, Heyl & Patterson Construction Co.

Edward G. Kuyat, Jr., Kuyat & Walker, for respondent, Shenango, Inc.

Judges Craig and Barry (p.), and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 103 Pa. Commw. Page 537]

This appeal results from an order of The Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision dismissing claimant's petition for benefits under the disease recovery provisions of the Pennsylvania Workmen's Compensation Act.*fn1

The Board decision referred to above was actually the second issued in the course of the proceedings involved

[ 103 Pa. Commw. Page 538]

    in the present appeal. Those proceedings were initiated on January 24, 1980, when the claimant filed a claim petition alleging total disability due to coal worker's pneumoconiosis. That petition, which was filed against Rochester and Pittsburgh Coal Co. (R&P), was followed two months later by a second petition filed against Shenango, Inc. (Shenango), an earlier employer of the claimant. After receipt of the second petition, the Workers' Compensation Bureau issued an "Assignment of Petition" form to the appropriate local referees. The assignment memo was captioned "Amended WC/OD."

A hearing was thereupon convened attended by Claimant, R&P and Shenango. Counsel for R&P immediately moved for dismissal on the grounds that it could not be liable under the Act. This motion was premised on the belief that, for an employer to be liable, it need have exposed a claimant to a disease hazard for at least one year during the 300-week period prior to disability. Cf. Section 301(c)(2) of the Act. Claimant, however, did not allege one year or more of employment with R&P during such period. Having concurred with R&P's interpretation of Section 301(c)(2), the referee granted the dismissal motion, concluding as follows:

Where an employee did not work in an exposure hazard at least one full year for any employer during the three hundred (300) week period prior to disability, the employer liable for the compensation shall be that employer giving the longest period of employment in which the employee was exposed to the hazards of the disease claimed.

Defendant-employer, [R&P], having shown by competent, credible and substantial work records that Claimant was only employed by [R&P] from June 24, 1974 through April 8, 1975, said defendant is hereby dismissed as having any liability. . . .

[ 103 Pa. Commw. Page 539]

    so held notwithstanding the fact that it, R&P, was the employer who, within the critical 300-week period, exposed the claimant to the disease hazard for the greatest period of time, and would, then, ostensibly be the liable employer.*fn2 The renewed claim against R&P was also held to be barred by the three-year statute of limitations. Claimant appealed the dismissal and the Board, again per Chairman Fergus, affirmed in all respects. Claimant then initiated the present petition for review.

Our scope of review is limited to a determination of whether the critical findings of fact are supported by substantial evidence, whether an error of law was committed, or whether any constitutional rights were violated. See Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). And see Kear v. Workmen's Compensation Appeal Board (Fairman Drilling Co.), 102 Pa. Commonwealth Ct. 193, 517 A.2d 586 (1986) (applying McGovern to cases brought under Workmen's Compensation Act). Claimant alleges only errors of law, specifically, (1) that the Board has erred in its construction of ...


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