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MASOUSKIE v. HAMMOND COAL CO. (01/20/53)

January 20, 1953

MASOUSKIE
v.
HAMMOND COAL CO.



COUNSEL

Penrose Hertzler and E. Mac Troutman, Pottsville, for appellant.

Thomas B. Noonan, Mahanoy City, Thomas L. Kennedy, Jr., Hazleton, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold, Gunther, JJ.

Author: Ross

[ 172 Pa. Super. Page 410]

ROSS, Judge.

This is a workmen's compensation case under the Occupational Disease Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1401 et seq. The compensation authorities made an award, it was sustained by the court below and the employer took this appeal.

The referee, affirmed by the Board, found that the claimant, Frank Masouskie, on December 19, 1950, became 'permanently totally disabled due solely to anthraco-silicosis after a period of five or more years' exposure'. It is not disputed that the claimant is totally disabled. The employer denies liability, however, on the ground that notice was not given to it in accordance with section 311 of the Act, 77 P.S. § 1411, which provides: 'Unless the employee or someone in his behalf, or some of the dependents or someone in their behalf, shall give notice of disability to the employer liable for compensation under this article, within fourteen days after the disability begins, no compensation shall be due until such notice be given, and unless such notice be given within ninety days after the beginning of disability no compensation shall be allowed.' It is admitted that notice of claimant's disability was given on January 8, 1951.

The employer concedes that under the decisions of this Court the ninety-day period begins to run only from the date on which the claimant knew or should have known that he was totally disabled as the result of anthraco-silicosis. Roschak v. Vulcan Iron Works, 157 Pa. Super. 227, 42 A.2d 280; Nickolay v. Hudson Coal Co., 164 Pa. Super. 550, 67 A.2d 828. It is further conceded that if claimant was not actually or constructively aware of total disability prior

[ 172 Pa. Super. Page 411]

    to December 19, 1950, notice given on January 8, 1951 was timely and compensation was properly awarded. It is the contention of the appellant, however, that claimant knew or should have known that he was totally disabled as the result of anthraco-silicosis in June of 1950. This contention is based principally upon the testimony of the claimant relative to a professional call upon a Dr. Dougherty. The claimant testified that in June 1950 he went to Dr. Dougherty 'and woke him out of bed and he told me to apply for compensation, that I had miners asthma', and in response to the question by counsel for the employer, 'Then at that time you were satisfied in your own mind that you couldn't do any more work?' he answered, 'Yes.' If this were the only evidence in the case it might be argued successfully that the claimant was totally disabled in June 1950 and that he knew it. However, it is our function to examine the entire record to determine whether there is substantial evidence to support the findings of the compensation authorities.

The employer introduced no evidence. The claimant testified that he was 'laid off' on April 6, 1950, and that about a month prior thereto: 'I worked on a slope timbering and the air was very bad. * * * I couldn't do it. The timber was heavy and only three of us so I got sick, I couldn't stand it. I choked with dust, bad air.' He was asked on cross-examination, 'Do you think you could have done any work after April 6th?' and he replied, 'No, I could hardly walk.' Immediately thereafter claimant was asked the same question and this time he answered, 'Maybe I could, different job but not the job I was doing.' The following testimony is found in appellant's cross-examination of claimant:

'Q. When did you first know you couldn't do any more work of any kind? A. When I got a cold I don't know how ...


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