George Jerko, Indiana, for appellant.
Francis A. Dunn, Johnstown, for Berwind-White Coal Mining Co. and Berwind Exchange.
C. A. Whitehouse, Associate Counsel and Ralph H. Behney, Counsel, Harrisburg, Robert E. Woodside, Atty. Gen., for State Workmen's Ins. Fund.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Gunther, JJ.
[ 172 Pa. Super. Page 306]
In this action the widow of George Valent sought to recover compensation after the death of her husband
[ 172 Pa. Super. Page 307]
on May 4, 1950, from occupational disease. He had worked as a miner in the defendant's bituminous coal mines, for many years. The Board ultimately found: 'Fifteenth: * * * that [George Valent] became totally disabled on March 30, 1946 as a result of anthraco-silicosis by reason of the employment * * * in a hazardous occupation having a silica hazard for the necessary statutory period'. On a further finding that he on March 13, 1947 'knew or should have known that he was totally disabled as a result of anthraco-silicosis' an award of compensation was refused because of his failure to give notice of his disability to the defendant employer, within ninety days from that date. The claim was disallowed also for a second reason based upon a finding by the Board 'that the death of the decedent, George Valent, occurred more than three years from the date of his last employment with defendant herein'. Section 311 of the Occupational Disease Act of June 21, 1939, P.L. 566, 77 P.S. § 1411 requires notice to the employer within ninety days 'after the beginning of disability'. And under § 301(c) of the Act, as amended, 77 P.S. § 1401, compensable death from occupational disease is restricted to death within three years from the date of last employment in the hazardous occupation.
Following the order of disallowance the widow-claimant petitioned the Board for a rehearing on the single ground that the record in this case will not support the conclusion that her husband on March 13, 1947 (corrected to May 13, 1947) knew or should have known that his total disability was attributable to occupational disease. The Board refused a rehearing. The present appeal is from the order of the lower court affirming the action of the Board. In our view there is error in the refusal of a rehearing; the order will be reversed.
[ 172 Pa. Super. Page 308]
Admittedly, the burden was on this claimant to show compliance with statutory requirements. But George Valent in his lifetime, on September 20, 1947, filed a claim petition for compensation and the circumstances do not charge him with knowledge before that date that his total disability was from occupational disease. It is difficult to imagine a case in which there could be more uncertainty in medical opinion. And we are unwilling to say, from this record, that George Valent must have known that his total disability was attributable to anthraco-silicosis when it required at least 5 hearings over a period of 4 years to establish that fact to the satisfaction of the Board.
By agreement the testimony before the referee on the claim of George Valent in his lifetime was made a part of the proofs in the present proceeding brought by his widow. The referee in effect found upon competent evidence (and the Board did not disturb the findings) that decedent became totally disabled on March 31, 1946; and that tests at the Windber Hospital where he was treated for lobar pneumonia from April 26 to May 18, 1946 demonstrated the presence of active tuberculosis of the right lung and a bundle branch block resulting from a degenerative myocardial disease. At the first hearing before the referee on December 2, 1947, Dr. A. C. F. Zobel testified that from an examination of the claimant on October 29, 1946, he found a mass in the upper right pulmonary zone but he was then unable to make a definite diagnosis as to the cause of the condition and 'was quite confused'. He examined the claimant a second time on ...