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PERON v. PHOENIX PARK COAL COMPANY. (03/17/64)

March 17, 1964

PERON, APPELLANT,
v.
PHOENIX PARK COAL COMPANY.



Appeal, No. 387, Oct. T., 1963, from order of Court of Common Pleas of Schuylkill County, March T., 1962, No. 322, in case of Mike Peron v. Phoenix Park Coal Co. et al. Order affirmed.

COUNSEL

John T. Pfeiffer, John B. McGurl, and Ronald J. Ulmer, for appellant.

Arthur E. Ricchiuti, Special Assistant Attorney General, Wilson H. Oldhouser, Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Wright

[ 202 Pa. Super. Page 496]

OPINION BY WRIGHT, J.

This is a case arising under The Pennsylvania Occupational Disease Act. Act of June 21, 1939, P.L.

[ 202 Pa. Super. Page 497566]

, 77 P.S. 1201 et seq. We are here concerned with an appeal by claimant from an order of the Court of Common Pleas of Schuylkill County, affirming a decision of the Workmen's Compensation Board wherein the claim petition was dismissed.

On February 1, 1960, Mike Peron filed a claim petition alleging that he became totally disabled as a result of anthraco-silicosis on October 5, 1959, and that his last exposure to a silica hazard was in June 1954, while employed by the Phoenix Park Coal Company. At the hearing before the Referee, the date of Peron's last employment was amended to February 15, 1954, and the date he became totally disabled was amended to January 9, 1960. After considering the testimony, the Referee filed a disallowance of compensation under Section 301(c) of the statute, as amended, 77 P.S. 1401(c), on the ground that claimant's disability did not occur within four years after the date of his last employment. Upon claimant's appeal to the Workmen's Compensation Board, the decision of the Referee was affirmed. Claimant appealed to the Court of Common Pleas of Schuylkill County, which tribunal directed that the record be remitted to the Board for further hearing and determination. The Board again affirmed the decision of the Referee. Claimant once more appealed to the Court of Common Pleas, which this time affirmed the Board's decision.

It is not disputed that claimant is in fact totally disabled by reason of anthraco-silicosis. He was examined by Dr. M. J. Herbert on January 9, 1960, on which date Dr. Herbert found that claimant was suffering from "advanced anthraco-silicosis with secondary emphysema". The problem on this appeal arises from Dr. Herbert's testimony that anthraco-silicosis is a progressive disease and that claimant was totally disabled "about two or three years before I examined him", more specifically in the month of January 1958.

[ 202 Pa. Super. Page 498]

In remanding the record for further hearing and determination, the court below was of the opinion that the Board had not given consideration to Dr. Herbert's testimony. In its second opinion the Board found that Dr. Herbert's ...


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