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DUQUESNE LIGHT COMPANY v. COMMONWEALTH PENNSYLVANIA (07/17/80)

decided: July 17, 1980.

DUQUESNE LIGHT COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND EDWARD KRAFT, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Edward Kraft v. Duquesne Light Company, No. A-74770.

COUNSEL

John A. Lee, attorney for petitioner.

No appearance for respondent.

Judges Wilkinson, Jr., Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 53 Pa. Commw. Page 93]

Duquesne Light Company has appealed from an order of the Workmen's Compensation Appeal Board (Board), affirming the referee's decision to award Edward Kraft (Claimant) workmen's compensation benefits for total disability due to coal miner's pneumoconiosis.

The 64 year-old Claimant was last employed in the bituminous coal mining industry in Pennsylvania by the Duquesne Light Company (Employer), from November 20, 1939, until January 2, 1976. On February 6, 1976, Claimant was examined at the Centerville Clinic, Fredericktown, by Dr. David White, who found that Claimant was totally and permanently disabled due to coal worker's pneumoconiosis. Claimant testified at the hearings before the referee that he was never notified of the results of Dr. White's examination by Dr. White or anyone until November 15, 1976, at which time he

[ 53 Pa. Commw. Page 94]

    was informed of the diagnosis by Mr. McIlvaine, his attorney, upon Claimant's initial visit to the attorney's office. November 15, 1976, also marked the date when Claimant's attorney gave notice of Claimant's injury to Employer.

The referee was also presented with evidence which conflicted with Claimant's testimony that the results of his examination were never disclosed to him prior to November 15, 1976. Dr. White testified that he customarily gives a patient his diagnosis immediately following an examination. In addition, Chester Walters, benefits counselor at the Centerville Clinic, testified that he conducted a follow-up interview of Claimant on March 2, 1976, at which time he explained to Claimant that, according to Dr. White's report regarding the examination of February 9, Claimant was considered totally disabled by pneumoconiosis. Although Mr. McIlvaine contends that he did not begin to act as Claimant's attorney until November 15, 1976, Employer submitted evidence to the referee showing that on March 11, 1976 Mr. Walters sent a copy of that report to Mr. McIlvaine. That letter also states that Claimant was advised by Mr. Walters that he (the Claimant) would be contacted by Mr. McIlvaine for the purpose of filing a petition.

Upon completion of the hearings, the referee made the following pertinent findings of fact, which were affirmed by the Board:

6. Based upon sufficient, competent and credible medical evidence of record in this case from Dr. David A. White, who examined claimant, your Referee finds as a fact that on February 9, 1976, claimant, Edward Kraft, became totally and ...


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