Appeal from order of Court of Common Pleas of Greene County, June T., 1964, No. 161, in case of John W. Butler v. United States Steel Corporation et al.
Robert M. Keener, with him Sayers, King & Keener, for appellant.
Myron W. Warman, with him E. D. Brown and Glen Toothman, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Watkins, J.
[ 205 Pa. Super. Page 510]
This is an appeal under the Occupational Disease Act of June 21, 1939, P. L. 566, as amended, 77 PS § 1201, from an order by which the Court of Common Pleas of Greene County dismissed the appeal of the defendant-appellant, United States Steel Corporation, from an award of benefits to the claimant-appellee, John W. Butler, by the Workmen's Compensation Board.
The claimant was employed by the appellant in various mines from 1915 until August of 1959. He then retired at the age of sixty-four years six months, to accept a miner's welfare pension and in anticipation of his entitlement to social security within six months. There is no question raised as to the exposure or his disability as the result of anthracosilicosis. The appellant claims he was totally disabled as a result of the disease on November 10, 1959; and the claimant fixes the date as June 9, 1962. The claim petition was filed on July 12, 1962.
Anthracosilicosis benefits, unlike workmen's compensation benefits, are not payable for partial disability due to the disease but are payable only on proof of total disability or death caused by the disease: § 301 of the Occupational Disease Act, 77 PS § 1401(e). The claimant must be totally disabled to qualify for benefits. Notice must be given of the disability to the employer
[ 205 Pa. Super. Page 511]
under the Act by the employee or someone on his behalf, within twenty-one days after the compensable disability begins: § 311 of the Occupational Disease Act, 77 PS § 1411. All claims are barred unless a petition is filed within sixteen months after compensable disability begins: § 315 of the Occupational Disease Act, 77 PS § 1415.
So the question before us is whether or not the claimant's petition filed on July 12, 1962 is timely under the Act. The appellant admits that the one hundred and twenty-day limitation and the sixteen month limitation begin to run from the date the employee is disabled and definitely knows he is totally disabled from anthracosilicosis. Ciabattoni v. Birdsboro St. F. & M. Co., 386 Pa. 179, 125 A.2d 365 (1956); Sierzega v. U.S. Steel Corp., 204 Pa. Superior Ct. 531, 205 A.2d 696 (1964); Roschak v. Vulcan Iron Works, 157 Pa. Superior Ct. 227, 232, 42 A.2d 280 (1945).
In the Ciabattoni case, supra, at page 182, the Supreme Court said: "Section 315 of the Occupational Disease Act of 1939 is not and, in the circumstances to which it specifically applies, cannot be construed as a legislatively intended statute of repose. The year within which a claim under that Act must be filed runs from the date when the compensable disability, due to the occupational disease, begins and that date is necessarily a variable one depending upon when the pertinent medical diagnosis is competently established to the knowledge of the claimant. . . . The Roschak case was the first time that Section 311 of the Occupational Disease Act had come before an appellate court of this State for interpretation. The employer argued that it should be given the same construction as had uniformly been ...