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CHARLES PETCOVIC v. WORKMEN'S COMPENSATION APPEAL BOARD (ST. JOE ZINC) (04/13/89)

decided: April 13, 1989.

CHARLES PETCOVIC, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ST. JOE ZINC), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Charles Petcovic v. St. Joe Zinc, No. A-89386.

COUNSEL

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

Bruce E. Woodske, for respondent.

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

Author: Smith

[ 125 Pa. Commw. Page 111]

Charles Petcovic (Claimant) appeals from the August 14, 1987 decision of the Workmen's Compensation Appeal Board (Board) which reversed the referee's decision directing St. Joe Zinc (Employer) to pay benefits to Claimant due to his total disability from mixed-dust pneumoconiosis pursuant to The Pennsylvania Workmen's Compensation Act*fn1 (Act). The sole issue presented for review is whether the doctrine of res judicata bars the instant claim for occupational disease in light of a previous decision that Claimant did not suffer partial or total disability resulting from mixed-dust pneumoconiosis or any other occupational disease. The Board's decision is reversed and remanded.

Claimant was employed from March 1, 1964 to December 21, 1979 as a dust roaster operator*fn2 with St. Joe Zinc which produces zinc and its by-products. Claimant

[ 125 Pa. Commw. Page 112]

    filed a claim petition on January 16, 1981 alleging, inter alia, total disability from occupational lung diseases as of November 21, 1980 due to his exposure to dusts during his employment. Referee Lawrence Laughlin found that as a dust roaster operator, Claimant operated or controlled various equipment in the processing of cadmium bearing secondaries, lime and sulfate liquor; that Claimant also mixed asbestos with water to charge retorts; and that he was exposed to a moderate degree of fumes and dust including, among others, cadmium, zinc, lead and sulphur. Referee decision of November 22, 1982; Findings of Fact No. 5. The referee further found that Claimant had been exposed to the occupational hazard of mixed-dust pneumoconiosis and interstitial fibrosis, the occurrences of which are substantially greater in Claimant's occupation than in the general population; however Claimant did not suffer from, nor was he partially or totally disabled by, mixed-dust pneumoconiosis or any other occupationally-related disease. Accordingly, the referee denied Claimant's claim petition for benefits. Claimant thereafter appealed to the Board which affirmed the referee by order dated November 3, 1983.

Claimant filed a second claim petition for benefits on February 15, 1984, alleging that he was totally disabled from occupational pneumoconiosis as of October 7, 1983. Referee Marvin Luxemberg took judicial notice of the previous referee's determination that St. Joe Zinc's employees involved with processing materials and elements into zinc products are exposed to the hazard of mixed-dust pneumoconiosis and interstitial fibrosis; that the diseases are causally related to the occupation; and their occurrence, particularly mixed-dust pneumoconiosis, is substantially greater in the occupation than in the general population. After several hearings, Referee Luxemberg determined that Claimant became totally disabled on

[ 125 Pa. Commw. Page 113]

October 7, 1983 as a result of mixed-dust pneumoconiosis due to total and cumulative exposure to the hazard of mixed-dust pneumoconiosis. The referee thus concluded that Claimant was entitled to compensation benefits pursuant to Sections 306(a) and 306(b) of the Act, 77 P.S. ยงยง 511-512.

Employer thereafter appealed to the Board which reversed the referee and dismissed Claimant's petition finding that the ruling on Claimant's first claim petition barred his second action by virtue of the doctrine of res ...


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