Appeal from the Order of the Workmen's Compensation Appeal Board, in case of John J. Thomas, Jr. v. Kawecki Berylco Ind., Inc., No. A-86605.
Bart E. Ecker, Laputka, Bayless, Ecker & Conn, P.C., for petitioner.
Sean P. McDonough, with him, Hugh F. Mundy, Marianne C. Smith, and Patrick E. Dougherty, Dougherty, Mundy & Leventhal, for respondent.
Judges Doyle and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle.
[ 106 Pa. Commw. Page 594]
John J. Thomas, Jr. (Claimant) petitions for review of an order of the Workmen's Compensation Appeal Board (Board) which reversed a referee's decision that had awarded Claimant benefits for total disability under Section 108(n) of The Pennsylvania Workmen's Compensation Act (Act).*fn1 We reverse.
[ 106 Pa. Commw. Page 595]
Claimant was employed as a beryllium worker by Kawecki-Berylco Industries, Inc. (Employer) from 1960 until November 29, 1979. During the course of his employment, Claimant was exposed to numerous chemicals while on the job.*fn2 It was also found that Claimant smoked cigarettes for nearly 40 years. On June 19, 1981, Claimant filed a petition for compensation under Section 108(a) of the Act, 77 P.S. § 27.1(a), alleging disability from May 22, 1981 as a result of beryllium poisoning, and gave notice contemporaneously to Employer. The petition was later amended to reflect a claim under Section 108(n), the omnibus provision under the Act for occupational diseases.
Before the referee, Claimant testified that he knew he had a breathing problem in 1979, and subjectively thought it was caused by exposure to beryllium.*fn3 The referee, however, found as a fact that Claimant was not disabled due to berylliosis. Instead, relying on the testimony of Claimant's physician, the referee concluded that Claimant suffered from chronic pulmonary fibrosis and emphysema, the aggravation of which by exposure to various workplace chemicals rendered him totally and permanently disabled as of May 20, 1981, and awarded Claimant benefits.
[ 106 Pa. Commw. Page 596]
On appeal, the Board reversed the referee. The Board reasoned that, since Claimant knew he had a disabling breathing problem in 1979 that he attributed to beryllium exposure, the 120-day notice period under Section 311 of the Act*fn4 began to run at that time. Accordingly, because Claimant did not give Employer proper notice, the Board concluded that his claim was barred. Claimant petitions this Court for review.
The issue on appeal is: Did Claimant's subjective belief that he was disabled from an occupational disease begin the running of the 120-day notification period under Section 311 of the Act when a referee subsequently finds as a fact that Claimant was not disabled from the disease at the time of Claimant's subjective belief?
Based on our recent decision in Lambert v. Workmen's Compensation Appeal Board (Reitz Coal Co. and Old Republic Cos.), 106 Pa. Commonwealth Ct. 565, 526 A.2d 1263 (1987), we are constrained to reverse the ...