Appeal from the Order of the Workmen's Compensation Appeal Board in case of Ernest A. McDole v. Crucible, Incorporated, No. A-78998.
William F. Henkel, Greenlee, Richman, Derrico & Posa, for petitioner.
Benjamin L. Costello, with him Lawrence R. Chaban, Yablonski, King, Costello & Leckie, for respondent, Ernest A. McDole.
President Judge Crumlish and Judges Rogers and Craig, sitting as a panel of three. Opinion by Judge Rogers.
[ 62 Pa. Commw. Page 367]
Crucible, Incorporated appeals an order of the Workmen's Compensation Appeal Board which affirmed a referee's award of benefits to claimant,
[ 62 Pa. Commw. Page 368]
Ernest McDole, pursuant to the occupational disease provisions of The Pennsylvania Workmen's Compensation Act.*fn1 Crucible's sole contention on the occasion of this appeal is that the record does not support the referee's finding that the claimant complied with the 120-day notice requirement of Section 311 of the Act.*fn2
The claimant is a sixty-five-year-old former employee of the conditioning department of Crucible. In that capacity he labored for thirty-four years as a "scarfer" burning defects out of steel billets and slabs by means of a hand held oxyacetylene torch. The referee, who personally inspected the claimant's work station, found that this occupation exposed him to "various dusts and fumes emanating from the scarfing operation."
On January 7, 1977, the claimant, complaining of a fever and breathing difficulties, consulted a Dr. Boyd who instructed him not to return to work and requested x-rays necessary for a definite diagnosis of the claimant's condition. The claimant also consulted Dr. Hoyt, Crucible's physician. The claimant then requested and Crucible granted sickness and accident benefits for unspecified respiratory problems.
On April 21, 1977, chest x-rays of the claimant were interpreted as indicating the presence of "pulmonary emphysema and changes suggesting a pneumoconiosis." There is no indication that this interpretation was ever communicated to the claimant. In September, 1977, at the request of his legal counsel, the claimant was examined by a Dr. J. D. Silverman.
[ 62 Pa. Commw. Page 369]
Dr. Silverman, by letter dated September 22, 1977, informed the claimant's counsel of a diagnosis of mixed dust pneumoconiosis, chronic asthmatic bronchitis and pulmonary emphysema, which condition constitutes an occupational disease within the meaning of the Act. The referee found that the claimant was not informed of this diagnosis until May 19, 1978, when he was so advised by counsel. The claimant filed a Claim Petition six days later, thereby giving notice to Crucible.
The critical findings of fact are:
24. The claimant was not advised by Dr. Silverman that he was disabled due to an occupational disease. Subsequent to January 7, 1977, the claimant was hospitalized and treated or examined by several physicians but was never advised by any of the physicians that he was disabled due to an occupational disease.
25. The claimant through the exercise or [sic] reasonable diligence first knew and became aware that his disability resulted from an occupational related disease on May 19, 1978.
At the first of several hearings at which Crucible's theory of defense was that the dust produced by scarfing does not generally and did not in the claimant's case lead to disabling pneumoconiosis, the claimant testified on direct examination as follows:
Q. When was the first time that anybody discussed with you what the problem was in your chest and possible relationship to your occupation?
A. That's when I went over to [Kenneth J.] Yablonski [Esquire]. That was in May ...