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DANIEL PETILLO v. WORKMEN'S COMPENSATION APPEAL BOARD (B.P. OIL CORPORATION) (08/25/87)

decided: August 25, 1987.

DANIEL PETILLO, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (B.P. OIL CORPORATION), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Daniel Petillo v. B.P. Oil Corp., No. A-77395.

COUNSEL

Robert W. Maher, Dyer, Maher & Costigan, for petitioner.

Andrew J. Forbes, Cramp, D'Iorio, McConchie & Forbes, P.C., for respondent.

Judges Colins and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 108 Pa. Commw. Page 630]

Daniel Petillo (Petitioner) petitions for review of an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's dismissal of his claim petition for compensation The Pennsylvania Workmen's Compensation Act (Act).*fn1

On October 13, 1976, Petitioner filed a claim petition which alleged partial disability resulting from asbestosis, contracted while in the employ of B.P. Oil Corporation (Employer). A referee found that, although Petitioner was suffering from asbestosis, Petitioner was not disabled and therefore not entitled to compensation. Petitioner appealed to the Board which affirmed the referee on January 31, 1980. While this appeal was pending, Petitioner took early retirement in August of 1979. No further appeal from the Board's January, 1980

[ 108 Pa. Commw. Page 631]

    order was taken. Thereafter on April 7, 1980, Petitioner filed a second claim petition alleging that he had contracted asbestosis. Several hearings were held and on January 9, 1984, a referee concluded that Petitioner had no interstitial lung disease due to asbestosis and that Petitioner was not totally disabled. The referee further found that any loss in earning power was the result of Petitioner's voluntary retirement and not due to Petitioner's medical condition. The referee then dismissed the claim petition. Petitioner appealed to the Board which affirmed the referee.

On appeal to this court, Petitioner asserts that, as a result of the May, 1979 finding that Petitioner did suffer from asbestosis, the referee was collaterally estopped from finding that Petitioner did not suffer from asbestosis. Petitioner also asserts that the referee's January, 1984 findings of fact are not supported by competent evidence and that the conclusions of law are not drawn from the evidence.

First, Petitioner asserts that the referee was collaterally estopped from finding he had not contracted asbestosis since this issue was previously addressed by the referee. Petitioner, however, failed to raise this argument before the referee or the Board. He did not argue that the referee was bound by his prior findings of fact until reaching this court. Therefore, the collateral estoppel argument is not properly before this court and we may not address it.

Next, Petitioner asserts that the January, 1984 findings of fact are not supported by competent evidence. The January, 1984 findings of fact are as follows:

1. The last time the Claimant alleges to have worked with asbestos was probably in January of 1971 when the ...


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