Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Clyde W. Horne v. Owens-Corning Fiberglas and A C & S, Inc. and Johns-Manville Corporation, No. A-86100.
Joel Persky, with him, Thomas W. White, Henderson & Goldberg, P.C., for petitioner.
William E. Doyle, Donatelli & Doyle, for respondent, Owens-Corning Fiberglas.
David C. Welty, for respondent, A C & S, Inc.
Robert A. Weinert, for respondent, Johns-Manville Corporation.
Wilbur C. Creveling, Jr., Creveling and Creveling, for respondent, Pacor, Inc.
Judges Craig and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig. Dissenting Opinion by Judge Doyle.
[ 98 Pa. Commw. Page 542]
Claimant Clyde W. Horne, before his death, filed this appeal of an order of the Workmen's Compensation
[ 98 Pa. Commw. Page 543]
Appeal Board which affirmed a referee's decision denying Mr. Horne workmen's compensation benefits. The referee concluded that Mr. Horne failed to give timely notice to his employers of his injury as directed by section 311 of The Pennsylvania Workmen's Compensation Act.*fn1
On April 19 and April 20, 1979, Mr. Horne had served notice upon the four defendant employers in this case, Johns-Manville Sales Corporation, A C & S, Inc., Pacor, Inc., and Owens-Corning Fiberglas Corporation, that he was totally disabled and unable to return to work as an asbestos insulation mechanic. Mr. Horne stated in his claim petition that he became totally disabled as a result of the occupational disease of asbestosis and of carcinoma of the lung on January 23, 1979. Mr. Horne testified that, on that date, Michael Wald, M.D., so informed him, after conducting a physical examination and reviewing Mr. Horne's records.
However, the referee stated in Finding of Fact No. 22:
[T]he Referee finds that Claimant knew, or by the exercise of reasonable diligence, should have known, of a possible relationship between his
[ 98 Pa. Commw. Page 544]
employment and his disability at least by mid-1978.
He accordingly concluded that the notice which Mr. Horne provided to the four defendant employers on April 19 and 20, 1979 was not timely.
The referee further found:
[I]t is extremely difficult to accept Doctor Stull's testimony that he did not inform claimant of any possible connection or relationship between the conditions of chronic obstructive pulmonary disease and/or pulmonary fibrosis to his employment although Doctor Stull was aware of Claimant's history of asbestos exposure and Claimant's concern about asbestosis; and the former in conjunction with Doctor Friedman's diagnosis of pneumoconiosis in x-rays taken on at least three occasions during the year 1978. . . .
Knowledge of Work-Related Disability
Section 311, as judicially construed, provides that the 120-day notice period "does not begin to run until" the claimant has: (1) knowledge or constructive knowledge (2) of a disability (3) which exists, (4) which results from an occupational disease, and (5) which has a possible relationship to his employment. Republic Steel Corp. v. Workmen's Compensation Appeal Board (Zacek), 47 Pa. Commonwealth Ct. 74, 77, 407 A.2d 117, 118 (1979).
The issue we first consider is whether the referee made findings of fact consistent with his conclusion that the five elements required to activate the section 311 notice period conjoined before January 23, 1979.*fn2
[ 98 Pa. Commw. Page 545]
The claimant's brief contends that no evidence of record suggests that Mr. Horne was informed before January 23, 1979, that his condition was related to exposure to asbestos, referring to his express testimony that he received the diagnosis of asbestosis on January 23, 1979, in Pittsburgh from Dr. Wald. He additionally testified that no doctor who examined him in 1977 told him that he had asbestosis.
Subject to a flurry of objections*fn3 Mr. Horne stated at the hearing before the referee on August 7, 1979:
Q. In November of 1977, Mr. Horne, did either Dr. Stull or Dr. Sadr diagnose your condition?
Q. In 1977, were you diagnosed as having asbestosis or lung cancer?
[ 98 Pa. Commw. Page 546]
Q. Were you diagnosed as having asbestosis?
However, at a later hearing before the referee, Mr. Horne retracted that earlier testimony.
Q. All right. Now, at the last hearing, you were asked by your counsel, what did they diagnose your condition as in November of 1977; and then again, in 1977 were you diagnosed as having asbestosis or lung cancer and your answer was yes.
A. I don't recall saying that; but if I did, it was wrong.
Q. You said in 1977 they did not tell you that you had asbestosis?
A. In 1977 they only told me I had acute bronchitis and pulmonary pneumonia. I had chest pains and I was given ...