Appeal from the Order of the Workmen's Compensation Appeal Board in case of Charles R. Young v. Britt & Pirie, Inc. and Fabuglass Corp., No. A-79314.
Kurt J. Shaffer, Guerrelli & Witiw, for petitioner.
David L. Pennington, with him Susan McLaughlin, Harvey, Pennington, Herting & Renneisen, LTD, for respondents, Britt & Pirie, Inc. and CNA Insurance Company.
President Judge Crumlish, Jr. and Judges Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.
[ 72 Pa. Commw. Page 472]
We have here consolidated for argument and disposition the appeal by Charles R. Young, a claimant, from a decision of the Workmen's Compensation Appeal Board (board) refusing him a rehearing of an unappealed board decision affirming a referee's refusal of benefits and the employer-respondents' motion to quash the claimant's petition for review as untimely filed under Pa. R.A.P. 1512(a)(1).*fn1
[ 72 Pa. Commw. Page 473]
We overrule the motion to quash. The claimant filed the pending petition for review on November 30, 1981, a date within 30 days of the board's order of November 5, 1981 refusing the application for rehearing.
We turn to the claimant's appeal. He contends that the board committed an abuse of discretion in refusing him a rehearing of an unappealed board decision affirming a referee's refusal of benefits. Section 426 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 871 provides that the board, upon petition, may grant a rehearing of any petition upon which an award or an order of disallowance of compensation has been made.
The claimant worked as a spray gun chopper operator for manufacturers of fiberglass parts. In April 1976, he filed a claim petition under the Workmen's Compensation Act against Fiberglass Corporation, alleging that he suffered from "chronic tracheitis due to fiberglass in the trachea and liver malfunctioning possibly due to acetone." On July 14, 1976, he filed an amended petition, joining Britt & Pirie, Inc., as an additional defendant. Both employers, through their insurance carriers, filed answers demanding proof of the claim and alleging that the claimant had not given notice of his injury within 120 days after its occurrence as required by Section 311 of the Act, 77 P.S. § 631.
After hearings, the referee dismissed the claim petition, concluding that (1) the claimant had not met his burden to prove that the diseases he was shown to have, chronic pneumonoconiosis and obstructive restrictive
[ 72 Pa. Commw. Page 474]
pulmonary disease, not being diseases which Section 108 of the Act, 77 P.S. § 27.1 makes compensable by name, were of incidence substantially greater in the industry in which he worked than in the general population as required by Section 108(n) of the Act, 77 P.S. § 27.1(n) and that (2) the claimant had not given notice of his injury to the defendants within 120 days after having knowledge of his injury as required by Section 311 of ...