Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of William Dillon v. Philadelphia Fire Department and Commonwealth of Pennsylvania, No. 2645 November Term, 1974.
George A. D'Angelo, with him Truscott and Erisman, for appellant.
James J. Kerwick, with him Joseph F. Strain and Anthony Witlin, for appellee, Philadelphia Fire Department.
David A. Ody, Assistant Attorney General, for appellee, Commonwealth.
Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers. Judge Kramer did not participate in the decision in this case.
[ 25 Pa. Commw. Page 126]
William H. Dillon, a former Philadelphia fireman, has appealed from an order of the Court of Common Pleas of Philadelphia County reversing an award of benefits by the Workmen's Compensation Appeal Board under The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq.
Section 108(o) of The Pennsylvania Occupational Disease Act, 77 P.S. § 1208(o), provides benefits in the case of: "Diseases of the heart and lungs, resulting in either temporary or permanent total or partial disability or death, after four years or more of service in fire fighting for the benefit or safety of the public, caused by extreme over-exertion in times of stress or danger or by exposure to heat, smoke, fumes or gases, arising directly out of the employment of any such firemen. The Commonwealth shall pay the full amount of compensation for disability under this clause."
The Civil Service Commission of Philadelphia placed Mr. Dillon on disability retirement with pension on May 6, 1969 after finding, on the basis of medical reports, that he suffered bronchitis and emphysema connected with his firefighting service which rendered him unable to perform the full duties of his employment from and after February 28, 1968. Mr. Dillon took up part-time employment as a pari-mutuel clerk but collapsed at his place of work on August 31, 1971. He testified that he was unable to do any work after this occurrence. Mr. Dillon filed a claim petition
[ 25 Pa. Commw. Page 127]
for occupational disease benefits on April 19, 1972, about eight months after, as he contends, he became totally disabled, but about 34 months after the Civil Service Commission placed him on disability retirement. The record clearly establishes that Mr. Dillon knew that he was partially disabled from lung disease at the time he was retired.
Section 315 of the Act, 77 P.S. § 1415, provides pertinently as follows: "In cases of disability all claims for compensation shall be forever barred, unless, within sixteen months after compensable disability begins, the parties shall have agreed upon the compensation payable under this article, or unless, within sixteen months after compensable disability begins, one of the parties shall have filed a petition as provided in article four hereof. . . ."
The Commonwealth's Department of Labor and Industry has contended throughout these proceedings that Mr. Dillon's claim is barred by Section 315 because he did not file a claim petition within sixteen ...