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WILLIAM F. HILDEBRAND v. WORKMEN'S COMPENSATION APPEAL BOARD (FIRE DEPARTMENT/CITY READING) (11/06/87)

decided: November 6, 1987.

WILLIAM F. HILDEBRAND, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (FIRE DEPARTMENT/CITY OF READING), RESPONDENTS. FIRE DEPARTMENT/CITY OF READING, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (HILDEBRAND), RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board, in case of William F. Hildebrand v. Fire Department/City of Reading, No. A-90603.

COUNSEL

Thomas F. McDevitt, Thomas F. McDevitt, P.C., for petitioner/respondent, William F. Hildebrand.

John J. McAuliffe, Jr., for respondent/petitioner, Fire Department, City of Reading.

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

Author: Macphail

[ 111 Pa. Commw. Page 26]

William F. Hildebrand (Claimant) and the City of Reading Fire Department (Employer) have petitioned for our review of an order of the Workmen's Compensation Appeal Board (Board) which amended a referee's order and, inter alia, granted Claimant full disability benefits and permitted Employer to take a credit against compensation payable for monthly non-service connected disability pension payments it makes to Claimant. The cases were consolidated for argument. For the reasons which follow, we grant Claimant's appeal and remand for additional findings on the credit issue, and we deny Employer's appeal.

Claimant was employed as a fireman with the City of Reading from September 26, 1970 to August 24, 1979. On July 1, 1980, Claimant filed a claim petition pursuant to Section 108(o) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, added by Section 1 of the Act of October 17, 1972, P.L. 930, as amended, 77 P.S. § 27.1(o). In his claim petition, Claimant alleged, inter alia, that on August 24, 1979, his exposure to "heat, smoke, fumes and gases in times of emergency under extremes of the weather,"*fn1 occasioned by his employment as a firefighter, resulted in his injury, heart disease, which rendered him totally disabled as of August 25, 1979.

It is undisputed that Employer failed to file an answer to the claim petition within fifteen days as required by Section 416 of the Act, 77 P.S. § 821.

[ 111 Pa. Commw. Page 27]

The referee, after conducting seven hearings which spanned over approximately five years, concluded that the allegations in Claimant's claim petition must be deemed admitted by virtue of Employer's failure to timely file an answer. The referee, however, also found that Claimant had failed to prove by "evidence apart and distinct from the allegations in the claim petition . . . that he contracted occupational disease, specifically disease of the heart, resulting in either temporary or permanent total or partial disability . . . arising directly out of the employment for Defendant as a fireman. . . ."*fn2 The referee then concluded that although he could not determine Claimant's proper compensation rate from August 25, 1979 and thereafter because Claimant had not provided evidence of his average weekly wage as of August 24, 1979, Claimant was "entitled to at least $75.67 per week, the minimum compensation rate for total disability due to occupational disease contracted in 1979. . . ."*fn3 The referee also concluded that Employer was entitled to a credit for the non-service connected disability pension payments it pays to Claimant.

Both parties appealed the referee's decision. The Board, without taking additional evidence, amended the referee's decision and, inter alia, granted Claimant full disability benefits and affirmed that part of the referee's decision permitting Employer to take a credit.

Claimant's sole argument here is that Employer is not entitled to a credit for the monthly non-service connected disability pension benefits it pays to Claimant. Employer argues that Claimant failed to raise the credit issue before the Board and therefore waived that ...


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