Appeal from the Order of the Workmen's Compensation Appeal Board in case of John Stankowski v. Fisher Body Division, General Motors Corporation, No. A-71062.
Anthony J. Seneca, for appellant.
Warren S. Reding, with him Reding & Rea, for appellee.
Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 29 Pa. Commw. Page 434]
John Stankowski appeals to this Court from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's denial of his claim for occupational disease benefits for loss of hearing pursuant to The Pennsylvania Occupational Disease Act*fn1 (Act).
[ 29 Pa. Commw. Page 435]
The only issue on appeal is whether or not the Board erred in affirming the referee's conclusion that Stankowski's petition, filed June 4, 1974, was barred by Section 315 of the Act, 77 P.S. § 1415. This section bars claims for compensation unless brought "within sixteen months after compensable disability begins," and as interpreted by our Supreme Court, this sixteen-month period "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." Ciabattoni v. Birdsboro Steel Foundry & Machine Co., 386 Pa. 179, 182, 125 A.2d 365, 367 (1956) (emphasis in original).
The referee did not make a finding with respect to a specific date on which compensable disability began, but he did include the following statement as his fifth "finding of fact":
After a careful study and review of the allegations made in the claim petition and the testimony of the claimant, your Referee grants the defendant's motion for dismissal in reference to the claim petition being untimely filed and accordingly dismisses said petition for the reason that it was not filed within sixteen (16) months of the date of disability.
Our own examination of the record reveals that there are several possible dates mentioned, any one of which the referee might have determined to be the date on which Stankowski first had knowledge of his disability. One is the date on which, according to his testimony, Stankowski was placed on sick leave by his employer, December 23, 1971. He said that the plant physician that day "felt that I was no longer capable of performing my duties due to the fact that I couldn't hear." Another might have been December 29, 1972
[ 29 Pa. Commw. Page 436]
when he was placed on a disability pension after having been on sick leave for one year. A third might have been November 30, 1972 when, as he asserts on his claim petition, he became disabled. He also stated that he found out from his doctor that he was totally and permanently disabled in either August or November of 1972. If, however, the referee had selected any of these dates as the date on which compensable disability began, Stankowski's petition of June 4, ...