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VARNER v. HARBISON-WALKER REFRACTORIES COMPANY ET AL. (09/15/66)

decided: September 15, 1966.

VARNER
v.
HARBISON-WALKER REFRACTORIES COMPANY ET AL., APPELLANTS



Appeal from judgment of Court of Common Pleas of Huntingdon County, Sept. T., 1963, No. 45, in case of Emory J. Varner v. Harbison-Walker Refractories Company et al.

COUNSEL

I. Newton Taylor, with him Newton C. Taylor, Donald R. Mikesell, Clyde M. Hughes, Jr., Chief Counsel, and Taylor & Taylor, for appellants.

Horace J. Culbertson, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Watkins, J.

Author: Watkins

[ 208 Pa. Super. Page 319]

This is an appeal from the judgment of the Court of Common Pleas of Huntingdon County under the Occupational Disease Act of June 21, 1939, P. L. 566, as amended, affirming the Workmen's Compensation Board in awarding benefits to the claimant.

The claimant, Emory J. Varner, was employed by the Harbison-Walker Refractories Company from 1924 to 1927 and from 1932 to the latter part of 1956, during which time he was exposed to a silica hazard.

The basic dispute in this case is when he became totally disabled, which determines whether the claim was properly filed within the sixteen month statutory period provided in § 315 of the Act, supra, 77 PS § 1415. The appellant company claims that he knew of his total disability in January, 1957, when the statute began to run, while the claimant contends that his total disability began September 7, 1959. If the claimant's contention prevails as to the date of total disability then the appellant claims that it did not have the notice of such disability within the required statutory period of 120 days after September 7, 1959. Section 311 of the Occupational Disease Act, supra, 77 PS § 1411.

The referee found that the claimant became totally disabled on September 7, 1959, and awarded benefits. The Board remanded the case to the Referee for the taking of additional testimony as to the hazard. The

[ 208 Pa. Super. Page 320]

Referee found that the claimant was exposed to a silica hazard but found that he became totally disabled during January of 1957 and disallowed benefits.

On appeal, the Board refused claimant's counsel the opportunity of oral argument and affirmed the Referee. The Court of Common Pleas, on appeal, remanded the record to the Board with directions to give counsel the opportunity of oral argument. This was done and then the Board found as a fact that ...


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