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RAY LAMBERT v. WORKMEN'S COMPENSATION APPEAL BOARD (REITZ COAL COMPANY AND OLD REPUBLIC COMPANIES) (06/12/87)

decided: June 12, 1987.

RAY LAMBERT, SR., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (REITZ COAL COMPANY AND OLD REPUBLIC COMPANIES), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Ray Lambert, Sr. v. Reitz Coal Company, No. A-87597.

COUNSEL

Blair V. Pawlowski, with him, Timothy P. Creany, for petitioner.

Paul E. Sutter, Tillman & Thompson, for respondents.

Judges MacPhail and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 106 Pa. Commw. Page 566]

Ray Lambert Sr. (Claimant) petitions for review of an order of the Workmen's Compensation Appeal Board (Board) which reversed a referee's award of occupational disease benefits to Claimant for partial disability from coal worker's pneumoconiosis. We reverse.

On August 20, 1982, Claimant, a retired coal miner, filed a petition seeking occupational disease benefits for total or partial disability from coal worker's pneumoconiosis under Section 108(q) of The Pennsylvania Workmen's Compensation Act (Act).*fn1 Notice of his intention

[ 106 Pa. Commw. Page 567]

    to file a claim was given to his last employer, Reitz Coal Company (Employer), on August 16, 1982. The referee found that Claimant first knew of his disability on August 13, 1982, and that notice to Employer was therefore timely under Section 311 of the Act.*fn2 The referee then found that Claimant suffered a partial disability from coal worker's pneumoconiosis as of August 3, 1982, and awarded him benefits.

Employer appealed, and the Board reversed. The basis for the Board's decision was the unappealed decision of a referee in an earlier claim petition filed by Claimant. On May 7, 1981, Claimant had filed a petition alleging disability from coal worker's pneumoconiosis as of April 21, 1981. Notice of Claimant's intention to file the claim was given to Employer on May 6, 1981. The referee in that case made two findings of consequence: He found that Claimant was informed by his physician of his disease and disability more than 120 days before he gave notice to Employer and, therefore, his claim was barred under Section 311 of the Act, and he also expressly found that Claimant was neither permanently nor partially disabled from his disease.

In the instant case resolving Claimant's second application for benefits, the Board reversed the referee's decision awarding benefits on the ground of res judicata, stating that "a dismissal of a petition on the basis of lack of notice bans all future petitions on that disease." Claimant petitions this Court for review.

Section 311 of the Act states:

Unless the employer shall have knowledge of the occurence of the injury, or unless the employe or someone in his behalf, or some of the dependents or someone in their behalf, ...


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