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JONES & LAUGHLIN STEEL CORPORATION v. WORKMEN'S COMPENSATION APPEAL BOARD (FEIERTAG) (07/30/85)

decided: July 30, 1985.

JONES & LAUGHLIN STEEL CORPORATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (FEIERTAG), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Charles Feiertag v. Jones & Laughlin Steel Corp., No. A-83997.

COUNSEL

Ronald Ganassi, Will & Keisling, for petitioner.

Alexander J. Pentecost, for respondent, Charles Feiertag.

Judge MacPhail, and Senior Judges Blatt and Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 90 Pa. Commw. Page 568]

Jones & Laughlin Steel Corporation (employer) appeals here an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of benefits to Charles Feiertag (Claimant) under Section 108(n) of The Pennsylvania Workmen's Compensation Act (Act).*fn1 The employer challenges the referee's finding as to the date of disability as well as the timeliness of Claimant's notice

[ 90 Pa. Commw. Page 569]

    of disability and of the filing of the claim petition. We affirm.

Claimant began working for the employer in 1945 and retired on January 17, 1974. During this period of employment, he was exposed to arc-welder fumes, acid fumes and smoke. Since 1969, Claimant had experienced shortness of breath which grew progressively more severe and finally brought on his retirement in 1974. In February 1976, Claimant was hospitalized for breathing difficulties at which time his physician, Dr. Wallace Zernich, diagnosed him as totally disabled due to a work-related lung disease. Dr. Zernich, however, failed to so inform Claimant of his opinion and Claimant remained unaware of both the nature of his disability and its possible relationship to his employment. On December 19, 1979, Claimant was examined by Dr. Jerry D. Silverman who concluded that he was totally disabled due to mixed dust pneumoconiosis, chronic bronchitis, and emphysema which had occurred as a result of Claimant's exposure to dust, fumes and smoke throughout his period of employment.*fn2 Dr. Silverman's opinion was contained in a report which was forwarded to Claimant's attorney. That attorney, due to a potential conflict of interest with the employer,*fn3 failed to divulge the contents of Dr. Silverman's report to the Claimant. After unsuccessfully attempting to obtain information from the attorney, Claimant personally contacted Dr. Silverman in December 1980 and received a

[ 90 Pa. Commw. Page 570]

    copy of his report on December 23, 1980. Upon learning the contents of the report, he promptly secured new counsel and sent the employer a notice of disability by certified mail on January 7, 1981. A claim petition*fn4 was filed on his behalf on January 13, 1981. After holding several hearings, the referee, on June 4, 1982, issued a decision which awarded Claimant compensation for a disability resulting from an occupational disease under Section 108(n) of the Act. The employer appealed this decision to the Board. The Board affirmed the referee and this appeal followed.

Before this Court, the employer contends that (1) Claimant's occupational disease did not occur within three hundred weeks after January 17, 1974, the date of his last exposure to the hazard, as set forth in Section 301(c)(2) of the Act;*fn5 (2) Claimant failed to give timely notice of disability to the employer as required by Section 311 of the Act;*fn6 and (3) Claimant's claim petition was not filed ...


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