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ASTEN HILL MANUFACTURING CO. v. COMMONWEALTH PENNSYLVANIA (01/07/81)

decided: January 7, 1981.

ASTEN HILL MANUFACTURING CO., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND HELEN ADAMS, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Helen Adams v. Asten Hill Manufacturing Co., No. A-74176.

COUNSEL

Michael P. McKenna, with him L. V. Jackson, for petitioner.

Joseph V. Furlong, for respondent, Helen Adams.

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

Author: Wilkinson

[ 56 Pa. Commw. Page 21]

Petitioner appeals an order of the Workmen's Compensation Appeal Board (Board) awarding disability benefits to claimant. We affirm.

Claimant worked for petitioner as a bobbin winder from May 1, 1946 to November 9, 1973. For five

[ 56 Pa. Commw. Page 22]

    months in 1970 claimant was laid off while the plant was closed. Throughout her employment claimant worked with asbestos yarn; she testified as to the dusty conditions around her machine and the penetration of the asbestos into her hands.

In September 1973 claimant was hospitalized for a heart condition and shortness of breath. At that time she was told she had asbestos fibers in her lungs. In November 1974 claimant went to a cardiology specialist. From a physical exam, an electrocardiogram, a chest x-ray, and pulmonary function studies, the physician concluded that on November 12, 1974, by virtue of her exposure for a number of years to asbestos, claimant had asbestosis in addition to hypertensive and coronary heart disease and was disabled therefrom.

Claimant filed in September 1975 a claim petition under the occupational disease provisions of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq.; an earlier claim petition for asbestosis under The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq., was consolidated with the other claim petition for consideration by the referee but later withdrawn. The referee, finding that claimant became totally disabled on November 12, 1974 from asbestosis and heart disease, awarded compensation; the Board affirmed.

Petitioner first asserts that claimant is barred from recovery under the occupational disease provisions of the Act for failure to give the 120 day notice as required by Section 311 of the Act, 77 P.S. § 631:

Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his behalf . . . shall give notice thereof to the employer within ...


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