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FRANK MARTINCIC v. WORKMEN'S COMPENSATION APPEAL BOARD (GREATER PITTSBURGH INTERNATIONAL AIRPORT) (08/05/87)

decided: August 5, 1987.

FRANK MARTINCIC, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (GREATER PITTSBURGH INTERNATIONAL AIRPORT), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Frank Martincic v. Greater Pittsburgh International Airport, No. A-89186.

COUNSEL

Joel Persky, Henderson & Goldberg, for petitioner.

David A. Cicola, William K. Herrington & Associates, for respondent.

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

Author: Macphail

[ 108 Pa. Commw. Page 239]

Frank Martincic (Claimant) appeals an order of the Workmen's Compensation Appeal Board (Board) which amended a referee's decision to award benefits only from the date notice of disability was given to Claimant's employer, rather than from the date of disability. We vacate and remand.

Claimant worked as a stationary engineer for more than thirty years, the last thirteen of which was in the employ of the Greater Pittsburgh International Airport. His job entailed maintaining and repairing heating and air conditioning equipment in an airport terminal, which exposed Claimant to asbestos dust and fumes. Claimant retired on August 25, 1978 because he had trouble breathing and "getting around."*fn1

[ 108 Pa. Commw. Page 240]

In November of 1981, Claimant was examined by Dr. C. Vaughn Strimlan who informed the Claimant that he had asbestosis. Claimant subsequently consulted an attorney and on January 11, 1982, two letters were sent to Claimant's employer informing it that Claimant is "totally and permanently disabled as a result of a presumed occupationally-related pulmonary disease."*fn2

Claimant filed a claim petition for workmen's compensation benefits on April 26, 1982, alleging that he became totally disabled as a result of asbestosis on August 25, 1978. The petition was assigned to a referee for a hearing, and on October 12, 1984, the referee awarded benefits from October 26, 1978, the date of Claimant's first disability.*fn3 The Board amended the referee's decision so that compensation commenced on January 12, 1982, the date on which Claimant's employer received notice of the disability. Claimant's petition for review of this order is now before our Court.

Claimant's sole argument on appeal is that the Board incorrectly amended the referee's order to award benefits from the date of notice of disability rather than from the date of disability. Our review of the Board's order is, of course, limited to a determination of whether constitutional rights have been violated, an error of law committed, or whether its findings are not supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704.

[ 108 Pa. Commw. Page 241]

Section 311 of The Pennsylvania Workmen's Compensation Act, (Act)*fn4 77 ...


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