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NICHOLAS KANYAN v. WORKMEN'S COMPENSATION APPEAL BOARD (HELVETIA COAL COMPANY) (04/14/89)

decided: April 14, 1989.

NICHOLAS KANYAN, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (HELVETIA COAL COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Nicholas Kanyan v. Helvetia Coal Company, No. A-91893.

COUNSEL

Timothy P. Creany, for petitioner.

Paul E. Sutter, Tillman & Thompson, for respondent, Helvetia Coal Company.

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

Author: Smith

[ 125 Pa. Commw. Page 173]

Nicholas Kanyan (Claimant) appeals the August 14, 1987 order of the Workmen's Compensation Appeal

[ 125 Pa. Commw. Page 174]

Board (Board) which reversed the referee's decision directing Helvetia Coal Company (Employer) to pay benefits to Claimant for his partial disability resulting from coal workers' pneumoconiosis.*fn1 The issue presented for review is whether Claimant's medical evidence was sufficient to support the referee's award of benefits. The Board is affirmed.

Claimant was a supply man for Employer for approximately seven years ending in January, 1979. Claimant filed two claims for occupational disease benefits in 1979 and in 1981; and in both cases, Claimant relied upon the testimony and medical evidence of Robert F. Klemens, M.D. (Klemens). Both claims were denied by different referees. Claimant filed the third and instant claim on April 14, 1983, slightly more than four months following the denial of his second claim, and once again, relied upon Klemens' diagnosis.*fn2 On January 25, 1984, the referee awarded Claimant partial disability compensation which Employer appealed to the Board. On December 6, 1985, the Board reversed and remanded to the referee to determine whether Claimant's breathing condition had changed relative to the prior claims, which would indicate that the third petition was a new claim and not merely a repetition of Claimant's previous petitions.*fn3

[ 125 Pa. Commw. Page 175]

On January 23, 1986, a remand hearing was held where both parties presented oral arguments but introduced no additional evidence or testimony. On June 11, 1986, the referee awarded Claimant benefits and found, based solely on Claimant's prior testimony of July 12, 1983, that his breathing condition had deteriorated. Again, Employer appealed to the Board which reversed the referee noting that Claimant had failed to provide unequivocal medical testimony to support his claim, and instead had offered in substance the same testimony from Klemens which was presented in two prior claims. Thus, Claimant's third claim did not constitute a new claim but rather a collateral attack on the decisions of prior referees. Hence, Claimant's petition for review to this Court.*fn4

As both parties note, occupational diseases may be progressive so that the denial of one claim does not necessarily preclude the filing of subsequent claims. Sullivan Trail Manufacturing Co. v. Workmen's Compensation Appeal Board (Wetzel), 80 Pa. Commonwealth Ct. 144, 471 A.2d 151 (1984). Additionally, this Court has held that the manifestation of an occupational disease may also be progressive in nature and that claimants should be given the opportunity to introduce medical evidence sufficient to demonstrate whether said manifestations are progressive. Fields v. Workmen's Compensation Appeal ...


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