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FINDLAY REFRACTORIES ET AL. v. COMMONWEALTH PENNSYLVANIA (06/30/80)

decided: June 30, 1980.

FINDLAY REFRACTORIES ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND GLEN E. RENZ, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Glen E. Renz v. Findlay Refractories and Commonwealth of Pennsylvania, No. A-74733.

COUNSEL

Raymond F. Keisling, Will & Keisling, for petitioners.

Robert H. Austine, with him Lawrence W. Dague, M. Scott Curran, Lawrence R. Zewe and Glen E. Renz, for respondents.

Judges Mencer, Rogers and Craig, sitting as a panel of three. President Judge Crumlish and Judges Mencer, Rogers, Blatt, Craig, MacPhail and Williams, Jr. Judge Wilkinson, Jr. did not participate. Opinion by Judge Craig. Judge Mencer Dissents. Judge MacPhail Concurs in the Result Only.

Author: Craig

[ 52 Pa. Commw. Page 456]

This appeal, from a decision of the Workmen's Compensation Appeal Board (board) affirming a referee's award of total permanent disability compensation, raises issues of timeliness of claim and notice. After initial argument before a panel of this court, we ordered reargument before the court en banc.

Claimant, after fourteen years of work in the refractories industry, grinding tank blocks composed of varying percentages of silicate compounds, told his foreman on May 16, 1974 that he was breathing with difficulty. The next day was his last day of work. He testified that he had the breathing problem to a less severe extent during the year before he quit work.

Hospitalization ensued and claimant's treating physician, Dr. Pizzi, referred claimant to a lung specialist, Dr. Quetsch, who performed a biopsy.

Claimant testified that, sometime in June of 1974, "I was told that I did have silicosis, to get out of there, and not to go back to work." He also testified that his breathing has progressively worsened since his last day of work.

Claimant's recollection coincides with a letter dated June 17, 1974, in which his treating physician stated to his attorney that the lung specialist "feels" that claimant was suffering from silicosis but that further studies had been ordered and not yet completed,

[ 52 Pa. Commw. Page 457]

    and that, in the interim, it was "felt" that claimant was unemployable because of silicosis.

On September 25, 1974, apparently based on this preliminary statement, claimant filed a petition under The Pennsylvania Occupational Disease Act (Disease Act)*fn1 claiming total disability due to silicosis.

A letter of December 2, 1974, by Dr. Wald, who examined claimant at the request of the Commonwealth and reviewed his medical record, stated that there was no evidence of significant pneumoconiosis at that time and that the patient's history was compatible with chronic bronchitis. A Dr. Anderson examined claimant at the request of the employer on April 9, 1975 and concluded, "There is an evidence of a pneumoconiotic disease process, however, the patient's pulmonary function studies are only minimally deranged and I do not feel that he is any more than 10% impaired from the respiratory standpoint."

On May 27, 1975, a department referee denied the claim, finding, among other things, that the medical evidence was not sufficient to establish silicosis and that claimant had chronic bronchitis.

The board thereafter issued an order setting aside those findings and remanding the case to the referee to make specific findings of fact concerning the dates of partial and total disability.

The employer's appeal from that order was eventually dismissed as interlocutory by the Washington County Court of Common Pleas on June 30, 1976.

In the interim, claimant was examined again on October 24, 1975, this time by Dr. Silverman. In a letter dated October 29, 1975, Dr. Silverman positively opined that claimant had silicosis, concluding that claimant was "obviously totally and permanently disabled."

[ 52 Pa. Commw. Page 458]

Claimant finally had the remand hearing, as ordered by the board, on November 14, 1977. At that hearing, when the referee asked if claimant wished to amend his original petition in order to proceed under The Pennsylvania Workmen's Compensation Act (Compensation Act),*fn2 ...


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