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JOHN J. THOMAS v. WORKMEN'S COMPENSATION APPEAL BOARD (KAWECKI BERYLCO INDUSTRIES INC.) (06/12/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 12, 1987.

JOHN J. THOMAS, JR., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (KAWECKI BERYLCO INDUSTRIES INC.), RESPONDENTS

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.

COUNSEL

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.

Author: 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. ยง 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 Board. In Lambert, we stated that, under Section 311:

[ 106 Pa. Commw. Page 597]

    the notice period begins to run only when a claimant knows or has constructive knowledge of his disability resulting from an occupational disease. It follows that, if a claimant is determined not to be disabled from an occupational disease, he could not inform his employer of his disability and the statutory notice period could not have begun to run.

Lambert, slip op. at 3-4 (emphasis added in part). In Lambert, the claimant's own doctor had informed the claimant that he was disabled because he had coal workers' pneumoconiosis. Nevertheless, the referee in the claimant's first application for benefits found that the claimant was neither partially nor totally disabled from his disease. In reversing the Board in an appeal emanating from the claimant's second claim petition, where the Board held that lack of notice was a bar to the claimant's petition, we held that the claimant's subjective belief, even if based upon the advice of his doctor, was not sufficient to hold that the claimant had constructive knowledge of his disability, if in fact he was not disabled.

Because the referee here found that Claimant was not disabled from berylliosis in 1979, Claimant was not required to provide Employer with any notice at that time. The referee did find, however, that Claimant was disabled as of May 20, 1981 from aggravation of chronic pulmonary fibrosis and emphysema due to exposure to assorted chemicals at work, and it is undisputed that Claimant gave notice to Employer within 120 days of this date. Accordingly, the Board erred in reversing the referee's decision.

Reversed.

Order

Now, June 12, 1987, the order of the Workmen's Compensation Appeal Board, No. A-86605 dated December 8, 1985, is reversed.

Disposition

Reversed.


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