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JOSEPH D. CORCORAN v. WORKMEN'S COMPENSATION APPEAL BOARD (PEPPERIDGE FARMS (09/23/86)

decided: September 23, 1986.

JOSEPH D. CORCORAN, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (PEPPERIDGE FARMS, INC.), RESPONDENTS. PEPPERIDGE FARMS, INC., PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (CORCORAN), RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board in the case of Joseph D. Corcoran v. Pepperidge Farms, Inc., No. A-86151.

COUNSEL

Fred T. Cadmus, III, for appellant/respondent, Joseph D. Corcoran.

Peter J. Weber, with him, Clifford A. Goldstein, Rawle & Henderson, for respondent/petitioner, Pepperidge Farms, Inc.

Judges Craig and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 100 Pa. Commw. Page 609]

Joseph D. Corcoran*fn1 (petitioner), appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision dismissing his claim for disability benefits as untimely filed. Pepperidge Farms, Inc. (employer), has also petitioned for review of the Board's decision, and the two appeals have been consolidated for our review.

It was found that the petitioner had worked for the employer in a variety of positions, and that, from the commencement of his employment in February 1970,

[ 100 Pa. Commw. Page 610]

    through October 1974, he was exposed to "flour dust and/or egg albumin dust" while working in three different job capacities. During the remainder of his employment, however, he was not in positions subjecting him to such exposure. Following his hospitalization for bronchial asthma in August 1974, the petitioner's physician informed him that the asthma was brought on by his working conditions, specifically by his exposure to egg albumin dust, and he was advised to change his occupational duties. He then requested and was assigned to new duties in October 1974, and he was not again subject to such exposure for the remainder of his employment. He continued, however, to experience asthmatic problems resulting in six more hospitalizations between January 1976 and February 1979. However, although the petitioner was, as the referee found, totally disabled during such times, no disability claim petition was ever filed prior to his non-illness-related termination of employment in June 1978. Such a petition, alleging his total disability from asthma purportedly caused by his exposure to egg albumin dust, admittedly was not filed until June 1979.

Although the referee concluded that the petitioner suffered from a work-related ailment otherwise compensable under the disease recovery provisions of The Pennsylvania Workmen's Compensation Act (Act),*fn2 he dismissed the petition as having been filed outside the pertinent three-year statute of limitations provided by Section 315 of the Act,*fn3 noting that the claimant had become disabled (i.e., he had lost earning power) in August 1974, nearly five years before the filing of the claim. The referee also held that the employer had

[ 100 Pa. Commw. Page 611]

    neither intentionally nor unintentionally lulled the petitioner into a false sense of security with respect to the need to file an earlier claim in order to protect his right to benefits.

Notwithstanding the referee's dismissal of the claim, the employer has also appealed here, alleging that the referee erred in his findings and conclusions concerning the compensability of the claimant's disability under the Act. The Board did not address this argument ...


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