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CARRIER COAL ENTERPRISES v. WORKMEN'S COMPENSATION APPEAL BOARD (BALLA) (07/27/88)

decided: July 27, 1988.

CARRIER COAL ENTERPRISES, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BALLA), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of John Balla v. Carrier Coal Enterprises, No. A-89676.

COUNSEL

Hugh F. Mundy, Dougherty, Mundy & Leventhal, for petitioner.

Thomas S. Cometa, Cappellini and Cometa, for respondents.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith.

Author: Smith

[ 118 Pa. Commw. Page 203]

Carrier Coal Enterprises (Employer) appeals from a Workmen's Compensation Appeal Board (Board) decision affirming the referee's award of benefits to John B. Balla (Claimant) under The Pennsylvania Occupational Disease Act (Act).*fn1 Questions presented for review pertain to the referee's determination as to when notice of Claimant's disability was given to Employer and whether the referee exceeded the scope of the Board's remand order.

Claimant was employed as a fireman and pump operator for Employer from December, 1975 until May 31, 1977.*fn2 He initially filed a claim petition under Section 108 of the Act, 77 P.S. ยง 1208, on February 20, 1981 alleging total disability from black lung disease as of May 31, 1977. Claimant voluntarily withdrew this petition, and an order dated April 8, 1982 was entered withdrawing the petition without prejudice. Claimant filed a new petition under Section 108 on March 31, 1982 alleging total disability from anthracosilicosis as of February 13, 1981.

The referee initially found that Employer received notice of Claimant's disability on April 5, 1982; that

[ 118 Pa. Commw. Page 204]

Claimant became permanently and totally disabled from anthracosilicosis on February 13, 1981 due to the accumulated effect of his exposure to silica hazard from all of his employers; and that Claimant was entitled to permanent and total disability benefits. Referee's Decision of April 4, 1983, Findings of Fact Nos. 4, 6; Conclusion of Law No. 2. The Board by order dated July 5, 1984 reversed and remanded to the referee to determine the date Claimant learned of his work-related disability and whether Claimant complied with the Act's 120-day notice provision. The referee's other findings were affirmed and not to be changed by the referee.

On remand, the referee found that Claimant learned of his work-related disability on February 13, 1981 when so informed by his physician. The referee also determined that Finding of Fact No. 4, previously affirmed by the Board, was in error and, without taking additional evidence, found that the date of Claimant's notice of disability to Employer was February 20, 1981 instead of April 5, 1982. Referee's Decision of January 17, 1985, Finding of Fact No. 2. As a result, the referee determined that Claimant met the Act's 120-day notice provision and again awarded benefits. The Board thereafter concluded that the remand order was overly restrictive and that the referee committed no error in exceeding its scope. The Board affirmed the referee, but deleted Finding of Fact No. 5 as inconsistent and an obvious typographical error.*fn3 Employer then petitioned this Court for review.

This Court's scope of review of Board decisions in a workers' compensation occupational disease case is limited to determining whether an error of law was committed, ...


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