Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph Fritz v. Kim Manufacturing Co., Inc., No. A-85102.
Ralph D. Friedman, Friedman & Friedman, for petitioner.
J. Davy Yocky, for respondent, Kim Manufacturing Co., Inc.
Judges MacPhail and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry.
[ 107 Pa. Commw. Page 169]
This appeal results from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision denying the claim petition of Joseph Fritz (claimant).
Claimant was employed with the defendant, Kim Manufacturing Co. (employer) from September, 1948 to November, 1977 in a variety of capacities, concluding his employment as the plant supervisor in Downingtown. On April 24th, 1980, claimant filed a claim petition alleging "[l]iver damage and cancer of kidney [sic]
[ 107 Pa. Commw. Page 170]
resulting from exposure to Tricholorethylene, Perchloroethylene, Phosgene, and Hydrocarbon Chloride." The further allegation was made that claimant was exposed to these chemicals while employed with the Kim Manufacturing Co. (the employer), and that as a result of his injury he had been disabled from November 14, 1977 to the present. A responsive answer was filed denying the allegations.
At hearings claimant appeared and testified that he had been exposed to the hazardous chemicals recounted above. He also testified, however, that he was currently employed on a full-time basis. A continuance was then agreed upon in order for medical testimony to be adduced.
Over the next two years, however, claimant requested fourteen more continuances in order for this testimony to be obtained. After claimant was advised by the referee that the record would be closed, the referee finally did so in October, 1982. The referee thereupon denied the claim, finding that the claimant's testimony was not competent to establish exposure to an occupational disease hazard, and concluding also that proper notice of injury,*fn1 even under the discovery rule*fn2 was not timely communicated to the employer.
The claimant appealed but the Board affirmed on the same grounds. The Board did not, however, rule on the employer's motion to quash the appeal on the grounds of untimeliness. The claimant ...