Jones & Laughlin Steel Corp. v. W.C.A.B. (Feiertag)

• Decision Date: 30 July 1985
• Citation: 496 A.2d 412,90 Pa.Cmwlth. 567
• Parties: JONES & LAUGHLIN STEEL CORPORATION, Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (FEIERTAG), Respondents. 1619 C.D. 1984
• Court: Pennsylvania Commonwealth Court

Page 412

496 A.2d 412

90 Pa.Cmwlth. 567

JONES & LAUGHLIN STEEL CORPORATION, Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (FEIERTAG), Respondents.

1619 C.D. 1984

Commonwealth Court of Pennsylvania.

Submitted on Briefs March 11, 1985.

Decided July 30, 1985.

Ronald Ganassi, Will & Keisling, Pittsburgh, for petitioner.

Alexander Pentecost, Pittsburgh, for respondents.

Before MacPHAIL, J., and BLATT and BARBIERI, Senior Judges.

BARBIERI, Senior Judge.

Jones & Laughlin Steel Corporation (employer) appeals here an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of benefits to Charles Feiertag (Claimant) under Section 108(n) of The Pennsylvania Workmen's Compensation Act (Act). ¹ The employer challenges the referee's finding as to the date of disability as well as the timeliness of Claimant's notice of disability and of the filing of the claim petition. We affirm.

Claimant began working for the employer in 1945 and retired on January 17, 1974. During this period of employment, he was exposed to arc-welder fumes, acid fumes and smoke. Since 1969, Claimant had experienced shortness of breath which grew progressively more severe and finally brought on his retirement in 1974. In February 1976, Claimant was hospitalized for breathing difficulties at which time his physician, Dr. Wallace Zernich, diagnosed him as totally disabled due to a work-related lung disease. Dr. Zernich, however, failed to so inform Claimant of his opinion and Claimant remained unaware of both the nature of his disability and its possible relationship to his employment. On December 19, 1979, Claimant was examined by Dr. Jerry D. Silverman who concluded that he was totally disabled due to mixed dust pneumoconiosis, chronic bronchitis, and emphysema which had occurred as a result of Claimant's exposure to dust, fumes and smoke throughout his period of employment. ² Dr. Silverman's opinion was contained in a report which was forwarded to Claimant's attorney. That attorney, due to a potential conflict of interest with the employer, ³ failed to divulge the contents of Dr. Silverman's report to the Claimant. After unsuccessfully attempting to obtain information from the attorney, Claimant personally contacted Dr. Silverman in December 1980 and received a copy of his report on December 23, 1980. Upon learning the contents of the report, he promptly secured new counsel and sent the employer a notice of disability by certified mail on January 7, 1981. A claim petition ⁴ was filed on his behalf on January 13, 1981. After holding several hearings, the referee, on June 4, 1982, issued a decision which awarded Claimant compensation for a disability resulting from an occupational disease under Section 108(n) of the Act. The employer appealed this decision to the Board. The Board affirmed the referee and this appeal followed.

Before this Court, the employer contends that (1) Claimant's occupational disease did not occur within three hundred weeks after January 17, 1974, the date of his last exposure to the hazard, as set forth in Section 301(c)(2) of the Act; ⁵ (2) Claimant failed to give timely notice of disability to the employer as required by Section 311 of the Act; ⁶ and (3) Claimant's claim petition was not filed within the three-year period mandated by Section 315 of the Act. ⁷ We shall address these issues seriatim.

We initially note that a workmen's compensation claimant has the burden of proof to show that he or she is entitled to benefits. Haney v. Workmen's Compensation Appeal Board (Patterson-Kelley Co., Inc.), 65 Pa.Commonwealth Ct. 461, 442 A.2d 1223 (1982). Also, a claimant has the burden of proving timely notice of disability as compliance with the notice requirement of Section 311 is mandatory. Tady v. Workmen's Compensation Appeal Board (Republic Steel Corp.), 86 Pa.Commonwealth Ct. 582, 485 A.2d 897 (1985). Where the party with the burden of proof has prevailed before the referee and the Board has taken no additional evidence, as is the case here, our scope of review is limited to a determination of whether constitutional rights were violated, an error of law committed, or findings of fact are unsupported by substantial evidence. Exxon Co. v. Workmen's Compensation Appeal Board (Grdgon), --- Pa.Commonwealth Ct. ---, 491 A.2d 318 (1985). As the party who prevailed before the referee, the Claimant is also entitled to the benefit of the most favorable inferences to be drawn from the evidence. Yellow Freight System v. Workmen's Compensation Appeal Board (McGill), 72 Pa.Commonwealth Ct. 500, 456 A.2d 1160 (1983).

Section 301(c)(2) of the Act requires that for a disability due to an occupational disease to be compensable, it must occur within three hundred weeks after the last date of employment in an occupation or industry in which the hazard is present. Here, the Claimant was last exposed to the hazard on January 17, 1974, his last day of work for the employer. The three hundred week period of Section 301(c)(2) would have expired on October 17, 1979. The referee specifically found that Claimant's disability began in February 1976 as a result of work-related restrictive and obstructive lung disease. The referee based this finding upon the testimony of Dr. Zernich, the physician who treated Claimant during his February 1976 hospitalization. Our review of Dr. Zernich's deposition satisfies us that it provides substantial evidence to support the referee's finding as to when Claimant's disability commenced. We must, therefore, reject the employer's challenge to the sufficiency of the evidentiary support for that finding.

The employer next argues that the Claimant failed to provide it with notice of disability in a timely fashion as required by Section 311 of the Act. Section 311 requires that, in the case of a disability resulting from an occupational disease, no compensation shall be payable unless a claimant provides the employer with notice of the disability within one hundred twenty days after the occurrence of the disability. ⁸ Here, the referee found that Claimant's disability commenced in February 1976 and that notice of disability was not received by the employer until January 9, 1981. ⁹ However, the referee also found that while Claimant was disabled as of February 1976, he was aware neither of his disability nor its work-related cause until he received Dr. Silverman's report on December 23, 1980. Claimant's lack of awareness of these facts was due to the failure of Dr. Zernich and Claimant's prior attorney to divulge those facts to him. Where the disability or its relationship to a claimant's occupation is not known to the claimant, we have held that the 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 or her employment. The plain language of Section 311 requires that all five elements cojoin to commence the running of the notice period. Republic Steel Corp. v. Workmen's Compensation Appeal Board (Zacek), 47 Pa.Commonwealth Ct. 74, 77, 407 A.2d 117, 118 (1979); United States Steel Corp. v. Workmen's Compensation Appeal Board (Engster), 10 Pa.Commonwealth Ct. 247, 249, 309 A.2d 842, 843 (1973).

The referee, in one of his additional findings, specifically found that:

That the claimant first knew or by reasonable diligence should have known that he was disabled as a result of the pre-existing occupational disease on December 23, 1980. Since notice of said disability was given to the employer on January 9, 1981 said notice complied with Section 311 of the Act.

The other findings relevant to the giving of timely notice are nine, ten, thirteen, fourteen and seventeen. ¹⁰ The record amply supports the referee's finding that, although the Claimant was disabled by an occupational disease as of February 1976, no such diagnosis was communicated to him until his receipt of Dr. Silverman's report on December 23, 1980. It was only at that time that the record shows a conjunction of all five elements: knowledge, actual or constructive, of a disability in existence and resulting from an occupational disease, as well as having a possible relationship to his employment. Therefore the referee correctly found that the time period for giving the employer notice of disability began to run on December 23, 1980 and that the notice given the employer on January 9, 1981 was timely and in compliance with Section 311.

The employer's final contention concerns the timeliness of the claim petition. Specifically, the employer contends that the claim petition filed on January 13, 1981 was outside of the three-year limitation period of Section 315 of the Act and that Claimant's claim for compensation is barred. Section 315 of the Act provides that claims for compensation shall be barred unless brought within three years from the date of disability resulting from an occupational disease. Since the referee found that Claimant's disability began in February 1976, a literal reading of Section 315 would seem to require the reversal of the Board and a dismissal of Claimant's petition as untimely.

The referee avoided this result by finding "that the three-year limitation period of Section 315 commenced on October 17, 1979, the date on which the three hundred week period of Section 301(c)(2) expired, and that, therefore, Claimant's petition of January 13, 1981 was timely." ¹¹ We agree with the employer that there is no basis in law for this conclusion. The three hundred week period of Section 301(c)(2) is a limitation upon the time in which a disability due to a work-related disease can develop after employment and still be compensable. The three-year period contained in Section 315 is a limitation upon the time in which claims for compensation for such disability can be brought after the disability occurs. The starting...