Summary
In Kosek v. Workmen's Compensation Appeal Board, 63 Pa. Commw. 497, 439 A.2d 854 (1981), this Court held that even absent any additional employment exposure, a claimant who has failed to prove disability in a prior occupational disease proceeding is not barred by res judicata from refiling his claim in an attempt to prove disability on a later date.
Summary of this case from Bethlehem M.C. v. W.C.A.BOpinion
Argued October 8, 1981
December 30, 1981.
Workmen's compensation — Res judicata — Pneumoconiosis — Time of disability.
1. Under the doctrine of res judicata, a former proceeding controls the disposition of a subsequent proceeding where there is an identity of the thing sued on or for, an identity of the cause of action, an identity of persons and parties to the action and an identity of the quality or capacity of the parties sued or being sued. [499]
2. The doctrine of res judicata does not preclude a workmen's compensation claimant from instituting an action in which it is asserted that on a particular date he suffered disability due to pneumoconiosis when an earlier action was dismissed in which he claimed that he suffered from the same condition but at an earlier date, and the claimant may refile his claim in an attempt to prove disability on a later date. [500]
Argued October 8, 1981, before Judges MENCER, WILLIAMS, JR. and PALLADINO, sitting as a panel of three.
Appeal, No. 2877 C.D. 1980, from the Order of the Workmen's Compensation Appeal Board in case of Joseph A. Kosek v. Mathies Coal Company and Commonwealth of Pennsylvania, No. A-72914.
Petition with the Department of Labor and Industry for workmen's compensation benefits. Claim dismissed. Petitioner appealed to the Workmen's Compensation Appeal Board. Appeal dismissed. Petitioner appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
Ronald J. Zera, with him Lawrence R. Chaban and Kenneth, J. Yablonski, for petitioner.
Thomas C. Reed, with him R. Henry Moore, Rose, Schmidt, Dixon, Hasley, Whyte Hardesty, and Daniel L. Fassio, for respondents.
This is an appeal by claimant Joseph A. Kosek from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision denying him occupational disease benefits under The Pennsylvania Workmen's Compensation Act (Act).
The Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 1 et seq.
The claimant was employed in the coal mining industry for a period of forty-two (42) years. For the last twenty (20) years of this period, he was employed by Mathies Coal Company, his last day of work being August 31, 1973. On November 6, 1973 he filed a claim petition wherein he alleged that he had become totally and permanently disabled as a result of coal miner's pneumoconiosis on August 31, 1973. A referee subsequently disallowed the claim, finding that there was no evidence of pneumoconiotic disease process in claimant, that claimant was not totally and permanently disabled from silicosis, anthracosilicosis or pneumoconiosis, and that claimant was not partially disabled as a result of these occupational diseases. Claimant appealed to the Board, which upheld the referee's determination and dismissed the appeal. No further appeal was taken from the Board's action on this claim.
In December of 1976, claimant filed a second claim petition, again alleging that he had become totally and permanently disabled as a result of exposure to coal dust. In this petition, however, claimant alleged November 6, 1976 as the date of disability. On February 1, 1977 a hearing was held before the same referee who had denied the prior claim petition. At that time, claimant offered new medical testimony in support of his second petition. On March 7, 1977 the referee dismissed the second claim petition, finding that the same was barred by the doctrine of res judicata. The Board affirmed, concluding that the referee's finding in the prior proceeding that claimant was not disabled was binding upon it.
Under the doctrine of res judicata, an adjudication will control the disposition of a subsequent proceeding only if there is a concurrence of four conditions: (1) identity of the thing sued on or for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality or capacity of the parties sued or being sued. Robachinski v. Workmen's Compensation Appeal Board, 33 Pa. Commw. 89, 380 A.2d 952 (1977). We believe that, under the facts of the instant case, the second of these four conditions has not been met.
An identity of cause of action is present for purposes of res judicata when, in both the prior and subsequent proceedings, the subject matter and the ultimate issues are the same. McCarthy v. Township of McCandless, 7 Pa. Commw. 611, 300 A.2d 815 (1973). The subject matter of a claim petition alleging disability because of pneumoconiosis is the state of a claimant's health at a given time, with the ultimate issue being whether or not the claimant is disabled within the meaning of the Act at the time alleged in the petition. Robachinski v. Workmen's Compensation Appeal Board, supra.
Instantly, the claimant's initial petition alleged disability because of pneumoconiosis on August 31, 1973. His second petition, however, alleged disability because of pneumoconiosis on November 6, 1976, a date more than three (3) years later. The subject matter and the ultimate issues of the claim petitions differ, therefore, in the time periods in which disability is alleged. In Robachinski, we held that, due to the progressive nature of the debilitating effects of occupational diseases, this difference renders the doctrine of res judicata inapplicable. Thus, even in the absence of additional employment exposure, a claimant who has failed to prove disability in a previous proceeding is not barred by res judicata from refiling his claim in an attempt to prove disability on a later date. Robachinski v. Workmen's Compensation Appeal Board, supra. See also, Armco Steel Corp. v. Workmen's Compensation Appeal Board, 60 Pa. Commw. 195, 431 A.2d 363 (1981).
In dismissing claimant's second petition, the Board cited the following language from Robachinski:
The fact that claimant did not have additional employment exposure in the period between his first and second claim petitions does not make the referee's subsequent finding of disability unreasonable, for the progressive nature of occupational diseases has long been recognized by the Courts of the Commonwealth. . . . In the absence of a referee's prior finding that claimant did not have the disease at all, the lack of additional employment exposure does not make the referee's subsequent findings of disability unreasonable. (Emphasis added.)
33 Pa. Commw. at 93-94, 380 A.2d at 954. Relying upon this statement, the Board, in its opinion, reasoned as follows:
In the matter before us, the Referee made a specific finding that the Claimant had no employment connected lung disease. . . .
If the Claimant did not have the occupational disease, then it could not progress. Thus, the Referee was correct in baring [sic] the second claim petition on the basis of res judicata. . . .
The flaw in this reasoning is that the referee did not find that claimant had no disease at all. Contrariwise, the referee found that there was no evidence of pneumoconiotic disease process in claimant and that claimant was not disabled by an occupational disease.
In light of the facts of this case and our decision in Robachinski, we find that claimant's second claim petition is not barred by the doctrine of res judicata. Accordingly, the order of the Workmen's Compensation Appeal Board in the above-captioned matter is reversed and remanded for a determination of whether claimant was disabled as the result of an occupational disease on November 6, 1976.
ORDER
AND NOW, the 30th day of December, 1981, the Order of the Workmen's Compensation Appeal Board at No. A-72914, dated November 13, 1980, is hereby reversed and the case is remanded to the referee to conduct a hearing on the merits of claimant's second petition.