Sullivan Trail Manufacturing Co. v. Workmen's Compensation Appeal Board

Opinion by Judge Doyle, This is an appeal by the Sullivan Trail Manufacturing Company (Sullivan) of an order of the Workmen’s Compensation Appeal Board (Board) which affirmed a referee’s award of benefits to Carl Wetzel for total disability under Section 108 of The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of the Act of October 17, 1972, P.L. 930, as amended, 77 P.S. §27.1. We affirm. On January 27, 1974, Wetzel, who had worked for Sullivan for twenty years in the mining industry, filed a Claim Petition alleging total disability due to exposure to a silica hazard. Following a hearing, com [146] pensation was denied and on appeal that denial was sustained by the Board. On July 14, 1977, Wetzel filed a new Claim Petition alleging that he became totally disabled due to anthraoosilioosis on March 15,1977. Following a hearing, benefits were granted. On appeal, the Board remanded for clarification of the referee’s decision, and, following two more hearings, benefits were again awarded. On appeal, the Board affirmed. Petition for review by this Court followed. Before this Court, Sullivan argues that the referee and the Board erred in failing to dismiss the second Claim Petition;1 Sullivan urges that Wetzel failed to overcome the legal effect of the denial of the first occupational disease claim. In Robachinski v. Workmen’s Compensation Appeal Board, 33 Pa. Commonwealth Ct. 89, 380 A.2d 952 (1977) we held that, because of the progressive nature of anthracosilicosis, the denial of a claim petition for an occupational disease does not necessarily preclude the filing of subsequent claims. Sullivan concedes that Robachinski is controlling in the case at bar but argues that the referee erred in awarding benefits without a finding that Wetzel’s condition had worsened since the denial of the first claim petition. We disagree; Robachinski requires no such finding. Our opinion in Robachinski noted that the subject matter of a claim petition is the state of the claimant’s health at a given time, and whether or not he- or she is disabled at the time alleged in the petition. While we must admit that after a finding that [147] a claimant was not disabled at some earlier time, subsequent findings tbat tbe claimant was disabled at some later time implicitly suggest tbat tbe claimant’s condition bad worsened, under tbe precise bolding of Robachinski, tbe referee need only determine wbetber tbe claimant is disabled at tbe time alleged and need not engage in a before and after analysis. Sullivan next urges tbat tbe referee’s finding tbat Wetzel is disabled was in error because it was based •on tbe medical evidence adduced at tbe bearing for tbe first claim petition wbicb resulted in a finding of no disability. While we would agree that if tbis were tbe only evidence in tbe record supporting tbe referee’s finding it would be insufficient, such is not the case here. In addition to tbe test results offered previously, Wetzel offered tbe testimony of bis doctor, after an examination conducted subsequent to the first denial of benefits, tbat, in bis opinion, Wetzel was presently disabled. In addition, the record contains testimony by an independent physician appointed by tbe referee concluding, after clinical examination as well as analysis of previously conducted tests, tbat Wetzel was presently disabled. Tbis constitutes substantial evidence to support tbe referee’s findings.2 Order Now, February 6, 1984, the order of tbe Pennsylvania Workmen’s Compensation Appeal Board in tbe above referenced matter, No. A-822441, dated February 3, 1983, is hereby affirmed. Footnotes [1] Sullivan initially urges error in the failure of the referee to deal specifically with its motion to dismiss on res judicata grounds. This was not error. The referee’s award of benefits constituted sufficient denial of the motion and no formal action was necessary. [2] Our scope of review where the party with the burden of proof prevails before the compensation authorities is to determine whether constitutional rights were violated, an error of law committed or whether findings of fact are unsupported by substantial evidence. Campbell Co. v. Workmen’s Compensation Appeal Board (Kerr), 74 Pa. Commonwealth Ct. 305, 459 A.2d 904 (1983).