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OMER FIELDS v. WORKMEN'S COMPENSATION APPEAL BOARD (DUQUESNE LIGHT COMPANY) (03/28/88)

decided: March 28, 1988.

OMER FIELDS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (DUQUESNE LIGHT COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Omer Fields v. Duquesne Light Company, No. A-91137.

COUNSEL

Alexander J. Pentecost, with him, Amiel B. Caramanna, Jr., for petitioner.

John J. B. Jones, Baskin, Flaherty, Elliott & Mannino, P.C., for respondent.

Judges Craig, Doyle, and Barry, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 114 Pa. Commw. Page 646]

Omer Fields (claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision granting a motion to dismiss of Duquesne Light Company (the employer). We reverse and remand for a decision on the merits.

The claimant was employed by the employer as a coal miner from August 17, 1948 through October 27, 1980. He has had no coal dust exposure since October 27, 1980. The claimant had filed a claim petition alleging that he had become totally or partially disabled as a result of industrial bronchitis as of August 30, 1982. A referee disallowed the claim finding, "Based upon sufficient, competent and credible medical evidence of record in this case . . . your Referee finds as fact that claimant does not have and is not disabled, totally or partially, from coal workers' pneumoconiosis, industrial bronchitis or any other work-related occupational disease."*fn1

In November of 1985, the claimant filed a second claim petition alleging that he had become totally disabled as a result of his exposure to coal dust. However, the second petition alleged coal workers' pneumoconiosis as the result of the exposure and July 1, 1985, as the

[ 114 Pa. Commw. Page 647]

    date of his disability. On January 16, 1986, the referee granted the employer's motion to dismiss the second claim petition on the basis that it was barred by the doctrine of res judicata. The Board affirmed the referee's finding that Robachinski v. Workmen's Compensation Appeal Board (Glen Nan, Inc.), 33 Pa. Commonwealth Ct. 89, 380 A.2d 952 (1977) controls. The claimant has appealed to this Court arguing that the Board committed an error of law in its interpretation of Robachinski. We agree.

Our scope of review is limited to a determination of whether there has been a violation of constitutional rights, an error of law has been committed or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. ยง 704.

For the doctrine of res judicata to be applicable there must be inter alia identity of the causes of action. See Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 345 A.2d 664 (1975). "[F]or purposes of res judicata, there is identity of causes of action when in both the old and new proceedings the subject matter and the ultimate issues are the same." McCarthy v. Township of McCandless, 7 Pa. Commonwealth Ct. 611, 618, 300 A.2d 815, 820 (1973). We do not find an identity of causes of action in this case.

The ultimate issue before the referee in the previous case was whether the claimant was disabled from industrial bronchitis as of August 30, 1982. The ultimate issue before the referee in the present case is whether the claimant was disabled from coal workers' pneumoconiosis as of July 1, 1985. As we recognized in Sullivan Trail Manufacturing Co. v. Workmen's Compensation ...


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