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ARCADIA COAL COMPANY AND OHIO CASUALTY INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (JOSEPH KUBALIC) (12/19/83)

decided: December 19, 1983.

ARCADIA COAL COMPANY AND THE OHIO CASUALTY INSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (JOSEPH KUBALIC), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph Kubalic v. Arcadia Coal Co., No. A-81575.

COUNSEL

Paul E. Sutter, Hirsch, Weise & Tillman, for petitioners.

David J. Tulowitzki, Pawlowski, Long, Creany & Tulowitzki, for respondents.

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

Author: Macphail

[ 79 Pa. Commw. Page 149]

Arcadia Coal Company (Employer) appeals from a decision by the Workmen's Compensation Appeal Board (Board) which affirmed the referee's award of compensation benefits to Joseph Kubalic (Claimant).

Claimant worked as a coal miner for Employer for seven years. Claimant terminated his employment on October 15, 1976, because his shortness of wind made

[ 79 Pa. Commw. Page 150]

    it impossible for him to perform his coal mining work. On April 3, 1979, Claimant was examined by Dr. Robert F. Klemens who diagnosed Claimant's condition as coal worker's pneumoconiosis. Dr. Klemens mailed his report which contained his diagnosis to Claimant on or about April 9, 1979.

The controversy in the case sub judice concerns the issue of Claimant's knowledge of his disability. On direct examination, Claimant testified that he did not know about the contents of the report until it was explained to him at his attorney's office on May 1, 1980. On cross-examination, Claimant testified that he received Dr. Klemens' report sometime in April 1979, and that on the day of his examination, Dr. Klemens told Claimant that he had coal worker's pneumoconiosis from inhaling coal dust at work which caused Claimant to be disabled.*fn1 Dr. Klemens testified that

[ 79 Pa. Commw. Page 151]

    he had no recollection of discussing the results of the examination with Claimant.*fn2

Claimant filed a claim petition for compensation benefits on May 9, 1980. The referee found, based on Dr. Klemens' medical report and testimony, that Claimant was partially disabled from coal workers' pneumoconiosis as of April 3, 1979; and that Claimant first knew of his ...


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