199 Pa. Super. 289 | Pa. Super. Ct. | 1962
Lead Opinion
Opinion by
The claimant in this Workmen’s Compensation caBe has appealed to this Court from an order of the court below affirming an order of the board denying compensation.
The claimant is totally disabled by reason of anthraco-silicosis and pulmonary tuberculosis. The claimant worked inside coal mines from 1934 to February 28, 1955. In his petition for compensation, he alleged that he became totally disabled on January 15, 1959,
The referee found that the claimant had become totally disabled January 15, 1959, but denied compensation because notice of the claimant’s total disability due to anthraco-silicosis was not given by the claimant to his employer within a period of 120 days after his disability began, as required by §311 of The Pennsylvania Occupational Disease Act of June 21, 1939, P.L. 566, as amended, 77 P.S. §1411.
The board found that disability occurred on December 10, 1959, but denied compensation on the ground that the disability had not occurred within four years of the last employment in such occupation or industry as required by §301 (c) of The Pennsylvania Occupational Disease Act, supra, 77 P.S. §1401 (c).
The claimant’s unfortunate position is set forth in Commissioner Noonan’s opinion when, speaking for the board, he said:
“From the above, it is clear that the claimant finds himself upon the horns of a dual dilemma. If it is found, as the referee did, that the claimant became totally disabled on January 15, 1959, then a favorable consideration of the claimant’s cause is unwarranted because notice was not given to the defendant employer until more than 120 days thereafter. On the other hand, if it is established that the claimant became totally disabled on December 10, 1959, then Section 301(c) bars an award. Since Dr. Cook did not see the claimant until November of 1959, his opinion that the claimant was totally disabled on January 15, 1959, is speculative, conjectural and not predicated upon fact.”
. The appellant contends that the board was guilty of a capricious disregard of the competent evidence. He particularly objects to the board’s rejection of Dr. Cook’s testimony concerning the claimant’s disability on January 15, 1959. The board indicated in its opinion that it rejected Dr. Cook’s testimony as to the date of the claimant’s total disability because the witness had not seen the claimant until about ten months after that date. The appellant cites Gallihue v. Autocar Co., 169. Pa. Superior Ct. 303, 82 A. 2d 73 (1951), as supporting this contention. If that case is relevant to this situation at all, it can stand for no more than that the testimony of Dr. Cook was admissible. The doctor’s testimony was admitted, considered and rejected by the board. It had the right to reject this testimony.
The appellant further contends that the board considered Only the medical testimony in determining the date of disability. In the board’s discussion, it made reference to the medical evidence but that is no indica
Order affirmed.
Dissenting Opinion by
Dissenting Opinion
The board supposes that the claimant is confronted by an inescapable dilemma: he is disqualified either because disability occurred more than four years after his last day of employment in February, 1955, or because his notice was given more than one hundred twenty days after the onset of disability. This dilemma is unreal. Its second major premise is false. The one hundred twenty day period for giving notice does not run from the date of onset of disability or even from the date when the claimant suspects that his disability may be due to the disease. It begins to run only when he “definitely knows that he is disabled by the occupational disease”. On this the cases are clear: Ciabattoni v. Birdsboro Steel Foundry & Machine Co., 386 Pa. 179, 125 A. 2d 365 (1956); Boschak v. Vulcan Iron Works, 157 Pa. Superior Ct. 227, 42 A. 2d 280 (1915).
The claimant did not definitely know that he was disabled by anthracosilicosis until December 10, 1959. He gave timely notice twelve days later.
The only real question to be decided is whether total disability occurred within four years of February
The claimant’s testimony, by stipulation, is that he has not worked since January 1959 due to shortness of wind and lung involvement. There is no contradiction of this testimony in the record. The only other testimony as to the date of disability in this scanty record is that of Dr. Cook. He stated that he examined the claimant on November 20, 1959, and ordered an X-ray examination. The X-ray examination was made by Dr. Mulligan, who on November 21, 1959, diagnosed the claimant’s condition as “advanced third stage anthracosilicosis with bilateral emphysema and complicating infection”. Dr. Cook first told the claimant he had anthracosilicosis about December 10, 1959, but his professional opinion was that this disease had totally disabled him on January 15, 1959.
It is clear from a review of the testimony that the board’s finding that total disability occurred on December 10, 1959 is without any support in the evidence. No one so testified, The X-ray report makes it clear, on the contrary, that the disability occurred not later than November 21, 1959. It seems like a capricious disregard of the claimant’s uncontradicted testimony to say that it occurred later than January 15, 1959.
More than this, the board reached its finding that the claimant became totally disabled on December 10, 1959, by illogically equating the date of the doctor’s “final firm diagnosis” with the date of the commencement of the claimant’s disability.
Finally, the board improperly disregarded the doctor’s opinion. It disposed of it in one sentence: “Since Dr. Cook did not see the claimant until November of 1959, his opinion that the claimant was totally disabled on January 15,1959, is speculative, conjectural and not predicated upon fact.” The board did not say it disbelieved the doctor’s testimony. It said, in effect, that
I would remand the case to the board for further proceedings in accordance with this opinion.