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ONESKO v. UNITED STATES STEEL CORPORATION. (03/19/64)

March 19, 1964

ONESKO, APPELLANT,
v.
UNITED STATES STEEL CORPORATION.



Appeal, No. 237, April T., 1963, from order of Court of Common Pleas of Fayette County, March T., 1963, No. 18, in case of Charles Onesko v. United States Steel Corporation et al. Order affirmed.

COUNSEL

Anthony Cavalcante, for appellant.

Benjamin Diamond, Special Assistant Attorney General, with him 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: Rhodes

[ 203 Pa. Super. Page 91]

OPINION BY RHODES, P.J.

This is an appeal from an order of the Court of Common Pleas of Fayette County which denied claimant compensation under The Pennsylvania Occupational Disease Act of June 21, 1939, P.L. 566, as amended, 77 PS § 1201 et seq.

The two questions raised in this appeal are (1) whether the claimant gave notice to his employer of his disability within the period of one hundred twenty

[ 203 Pa. Super. Page 92]

    days as required by section 311 of the Act, as amended, 77 PS § 1411; and (2) whether claimant's disability occurred within four years after the date of his last employment in which he was exposed to the occupational hazard as required by section 301(c) of the Act, as amended, 77 PS § 1401(c).

The testimony indicates that claimant was sixty-seven years of age. He was a victim of silicosis, and was exposed to the silica hazard over a continuous period or forty-four years with various coal companies. His last exposure was on June 27, 1957, when he left the employ of the United States Steel Corporation.

Claimant consulted Dr. Roy C. Jack in June, 1961. Dr. Jack informed claimant that he had "dust on the lungs," and referred him to Dr. Ed6ard Lebovitz. On December 4, 1961, Dr. Lebovitz examined claimant and informed him of his total disability due to silicosis. Notice to the last employer was given by claimant on December 8, 1961, and the claim petition was filed on December 14, 1961. The claim petition stated that June 20, 1961, was the date of claimant's disability.

The referee awarded the claim, finding that "The claimant gave notice within 120 days from the date he first knew or learned his diagnosis, which rendered him totally disabled in June, 1961." The board reversed the referee and found that claimant became totally disabled in June, 1961, and that claimant had knowledge of the fact at that time. Consequently, claimant's petition did not give notice ...


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