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CULP INDUSTRIAL INSULATION v. COMMONWEALTH PENNSYLVANIA (03/18/81)

decided: March 18, 1981.

CULP INDUSTRIAL INSULATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND HENRY LINKER, SR., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Henry Linker, Sr. v. Culp Industrial Insulation, No. A-77935.

COUNSEL

Joseph A. Loch, with him Joseph P. Lenahan, Lenahan & Dempsey, P.C., for petitioner.

Erik N. Dingle, for respondent, Henry Linker, Sr.

Judges Wilkinson, Jr., Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 57 Pa. Commw. Page 600]

Culp Industrial Insulation (Culp) has appealed from an order of the Workmen's Compensation Appeal Board (Board) which affirmed, as amended by the Board, a referee's award of total disability benefits to claimant Henry Linker, Sr., for an occupational disease as defined by The Pennsylvania Workmen's Compensation Act (Act).*fn1

[ 57 Pa. Commw. Page 601]

Appellant Culp does not dispute the finding that the claimant suffered permanent total disability from an occupational disease, asbestosis, contracted in the course of employment. The appellant's central contention is that the record does not support the conclusion that the claimant complied with the 120-day notice requirement of Section 311 of the Act.*fn2 More specifically, Culp asserts that almost 2 years elapsed between the time the claimant first knew or should have known he was disabled from a job-related occupational disease and when he notified Culp of his condition.

Claimant Linker had worked about 38 years insulating pipes with asbestos. Working out of a union hall, he performed that task for many employers over the course of his career. However, during the period between 1970 and February, 1974, he did work principally for appellant Culp. On February 19, 1974, Linker retired, having reached age 65.

In 1977 Linker began to cough blood. On April 1, 1977, he was examined by a Dr. Charles Myers, who diagnosed that Linker was disabled by job-related asbestosis. What Dr. Myers told the claimant about that diagnosis is a critical question underlying the notice issue in this case. It is clear, however, that Dr. Myers did tell the claimant to undergo further tests. Instead of seeking the other tests as recommended by Dr. Myers, Linker at some later point sought the opinion of another doctor, Dr. Irving Selikoff.

According to Linker's testimony in this case, he did not gain complete knowledge that he was totally disabled due to his previous employment until he received

[ 57 Pa. Commw. Page 602]

Dr. Selikoff's letter dated November 14, 1978, which diagnosed the claimant's condition as work-related, extensive pulmonary asbestosis. On February 14, 1979, the ...


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