87 Pa. Commw. 543 | Pa. Commw. Ct. | 1985
Opinion by
This is the appeal of Tony Mangine (Appellant) from the order of the Workmen’s Compensation Appeal Board (Board) quashing Appellant’s appeal and remanding the case to the referee.
On November 21,1980, Appellant filed a claim petition under Section 108, the occupational disease section, of The Pennsylvania Workmen’s Compensation Act, (Act) Act of June 2, 1915, P.L. 736, as amended, added by Act of October 17, 1972, P.L. 930, 77 P.S. §27.1, alleging total disability due to pneumoconiosis and/or anthracosilicosis (commonly known as black lung disease) and their sequelae contracted in the 43
The Board concluded that the order of the referee denying the amendment was interlocutory and therefore unappealable. The Board also held that the referee correctly decided that the amendment of the claim petition should not be allowed because its effect would be to permit Appellant to assert a new cause of action after the expiration of the statute of limitations provided in iSecion 315 of the Act, 77 P.S. §602.
An order of the Board remanding a case to a referee is generally considered interlocutory and therefore unappealable. Murhon v. Workmen’s Compensation Appeal Board, 51 Pa. Commonwealth Ct. 214, 414 A.2d 161 (1980). Although exceptions to this rule previously existed,
and unappealable as a matter of right, without exception.” Alan Wood Steel Co. v. Workmen’s Compensation Appeal Board (Adams), 74 Pa. Commonwealth Ct. 230, 231-32, 459 A.2d 887, 887 (1983), quoting
As to the Board’s contention that the motion to amend was time barred,
That rationale is inapplicable to the facts in the instant case, because Appellant here filed his claim petition alleging total disability due to pneumoconiosis and/or anthracosilicosis and their sequelae. The proposed amendment would allow Appellant to proceed under the Act alleging a total disability due to a heart attack, an entirely different cause of disability. The facts and circumstances of Appellant’s alleged occupational disease and the proof necessary to sustain such a claim are substantially different from the facts and circumstances of Appellant’s heart disability and proof required for the claim. To permit this amendment would obviously prejudice the employer, who is prepared to defend the occupational disease claim. We
We, accordingly, hold that Appellant’s claim based upon a heart attack alleged to have occurred November 22, 1977 is time barred.
Order
The part of the order of the Workmen’s Compensation Appeal Board No. A-85190, dated June 2, 1983 affirming the referee’s denial of the Petitioner’s motion to amend his claim petition, is affirmed. That part of the order which held that the referee’s order was interlocutory is reversed. The case is remanded to the Board for further proceedings to determine the claimant’s eligibility for benefits under Section 108 of the Act.
The three exceptions to the general rule that an appeal of a remand order should he granted were: 1) the appeal to the Board resulting in remand was untimely, 2) the remand, based on the record before the Board, could not produce a different result, or 3) the Board’s action in granting the remand was based on clear error of law. Murhon.
“An order is interlocutory and not final unless it effectively puts the [party] ‘out of court’. . . . An order does not put ‘a party out of court’ unless it precludes proof of facts at trial. . . .” Hallstead Foundry v. Workmen's Compensation Appeal Board, 66 Pa. Commonwealth Ct. 445, 447, 445 A.2d 254, 255 (1082). (Citation omitted.)
Section 315 of The Pennsylvania Workmen’s Compensation Act, 77 P.S. §602 provides in pertinent part that:
In cases of personal injury all claims for compensation shall be forever barred, . . . unless within three years after the injury, one of the parties shall have filed a petition as provided in article four hereof.
Appellant argues that because the Board’s defense of The Pennsylvania Workmen’s Compensation claim is that his disability resulted from his heart condition, he should be allowed to pursue recovery for this heart condition because the employer was aware of the heart attack. While we are aware that the provisions of the Act are remedial, we do not believe that the employer’s knowledge of an injury occuring nearly five years ago entitles a claimant to recover benefits for an injury which otherwise would be precluded as to both right and remedy by the applicable statute of limitations. Helstrom v. Workmen’s Compensation Appeal Board, 43 Pa. Commonwealth Ct. 113, 401 A.2d 882 (1979). “The courts may not extend the period [for filing compensation claims] ex gratia in aid of a meritorious claim or to relieve against the hardship of particular circumstances.” Thorn v. Strawbridge & Clothier, 191 Pa. Superior Ct. 59, 62, 155 A.2d 414, 416 (1959).