Appeal from the Order of Court of Common Pleas of Allegheny County in case of In Re: Appeal of Ralph Scobbo v. Heppenstall Company and Commonwealth of Pennsylvania, No. SA 594 of 1972.
Roy F. Walters, Jr., with him Brandt, McManus, Brandt and Malone, for appellant.
John W. McIlvaine, with him Samuel C. Vary, and James N. Diefenderfer, for appellees.
President Judge Bowman and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.
[ 22 Pa. Commw. Page 111]
This is an employer's appeal from an order of the Court of Common Pleas of Allegheny County affirming an award of compensation under The Pennsylvania Occupational Disease Act*fn1 to Ralph Scobbo for total disability.
Mr. Scobbo began his forty-four years of continuous employment with the appellant, Heppenstall Company,*fn2 in 1924. He worked five years in the toolroom and was then transferred to the blacksmith shop where he remained until 1952, when he returned to the toolroom until 1968. At both locations he ground tools on wheels on which were written a notation that they were made of silicon. The wheels raised clouds of dust so dense that, in the claimant's words, "[a]t times could not hardly see in front of you." The appellant developed difficulty in breathing which became so serious that on the advice of his family doctor he retired on pension on November 18, 1968, notifying his employer that he was totally disabled. Heppenstall's doctor told him that he had emphysema.
In 1969 Mr. Scobbo consulted a Doctor Thomas P. Connelly who, after examination, reported on October 19,
[ 22 Pa. Commw. Page 1121969]
that the claimant had silicosis due to occupational exposure. This was the first knowledge that the claimant had that he was suffering from silicosis. He filed his claim petition for compensation for silicosis on November 3, 1969. On January 20, 1970 a physician engaged by the Commonwealth Department of Labor and Industry reported that the claimant suffered from "pneumoconiosis compatible with silicosis" and on June 12, 1970 a specialist in lung diseases reported that Mr. Scobbo "[was] disabled from silicosis, pulmonary fibrosis, pulmonary emphysema and that this condition [was] the result of his total cumulative exposure where he worked, as a chipper and grinder." The several medical reports mentioned were admitted into evidence without objection from Heppenstall. The referee found that the claimant had been exposed to silica hazard, that he is totally and permanently disabled due to silicosis and awarded compensation. The Workmen's Compensation Appeal Board and the lower court affirmed the award of compensation and this appeal from the court's order followed.
Heppenstall advances two reasons for reversal of the award. It first contends that the claimant failed to give the notice required by Section 311 of The Pennsylvania Occupational Disease Act, 77 P.S. § 1411, which reads:
"Unless the employe 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 twenty-one days after compensable disability begins, no compensation shall be due until such notice be given, and unless such notice be given within one hundred and twenty days after the beginning of compensable disability no compensation shall be allowed."
Heppenstall's argument is based on recent decisions of the Workmen's Compensation Appeal Board in which it asserts that the Board decided that the provision cited had not been ...