22 Pa. Commw. 411 | Pa. Commw. Ct. | 1975
Opinion by
This is an appeal by the City of Scranton from an order of the Court of Common Pleas of Lackawanna County which affirmed an award of compensation to
On October 25, 1973, O’Donnell filed a claim petition seeking compensation for the death of her husband pursuant to Section 108 (o) of the Occupational Disease Act, 12 P.S. §1208(o).
The lower court decided that O’Donnell had succeeded in proving that her husband’s death was caused by an occupational disease under the Workmen’s Compensation Act, but remanded the case so that the Board could determine whether the decedent had exposure to the hazard of his occupational disease after June 30, 1973.
This case is controlled by our recent decisions holding that the referee and the Board may not award benefits under the Workmen’s Compensation Act when a claim petition is filed under the Occupational Disease Act and never amended.
The Board erred in its adjudication by applying the scope of review applicable to Workmen’s Compensation cases.
We therefore 0rdbr
And Now, this 19th day of December, 1975, the order of the Court of Common Pleas of Lackawanna County, dated March 11, 1975, is hereby reversed, and it is
. Act of June 21, 1939, P.L. 566, as amended, 77 P.S. §1201 et seq.
. Section 108 (o) of the Occupational Disease Act reads as follows:
“The term ‘occupational disease,’ as used in this act, shall mean only the following diseases:
“(o) Diseases of the heart and lungs, resulting in either temporary or permanent total or partial disability or death, after four years or more of service in fire fighting for the benefit or safety of the public, caused by extreme over-exertion in times of stress or danger or by exposure to heat, smoke, fumes or gases, arising directly out of the employment of any such fireman. The Commonwealth shall pay the full amount of compensation for disability under this clause.” (Emphasis added.)
. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §1 et seq.
. See Workmen’s Compensation Appeal Board v. Wlodarczyk, 21 Pa. Commonwealth Ct. 495, 347 A.2d 763 (1975).
. See Sections 108 (o), 302(c)(2) of the Workmen’s Compensation Act, 77 P.S. §§27.1 (o), 411(2).
. See Workmen’s Compensation Appeal Board v. City of Hazleton, 21 Pa. Commonwealth Ct. 522, 347 A.2d 332 (1975) and Wlodarczyk, supra.
. Our holding in Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A. 2d 757 (1973), did not change the Board’s scope of review under the Occupational Disease Act. The Board is still the ultimate fact finder and may disregard the findings of the referee.