371 A.2d 542
Commonwealth Court of Pennsylvania.Submitted on briefs, March 10, 1977.
March 28, 1977.
Workmen’s compensation — Occupational disease — Limitation of action — Timeliness of claim — The Pennsylvania Occupational Disease Act, Act 1939, June 21, P.L. 566 — Knowledge of claimant — Sufficient evidence — Rebuttal evidence.
1. A claim under The Pennsylvania Occupational Disease Act, Act 1939, June 21, P.L. 566, must be filed within sixteen months after the compensable disability begins which is a variable date depending upon when the pertinent medical diagnosis is completely established to the knowledge of the claimant. [435]
2. It is not necessary that the exact date a compensable disability began be the subject of a finding of workmen’s compensation authorities when the claim was properly found to have been filed too late regardless which of the possible dates were selected by the fact-finder. [435-6]
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3. The refusal of workmen’s compensation authorities to permit evidence from non-party witnesses as to the date on which a claimant had knowledge of the compensable disability is not erroneous when the claimant’s own testimony established that he had such knowledge on a date which required a finding that his claim was untimely filed. [436]
4. It is not error to refuse to permit a workmen’s compensation claimant to present rebuttal evidence when the defendant presented no evidence at all. [436]
Judges WILKINSON, JR., MENCER and BLATT, sitting as a panel of three.
Appeal, No. 1337 C.D. 1976, from the Order of the Workmen’s Compensation Appeal Board in case of John Stankowski v. Fisher Body Division, General Motors Corporation, No. A-71062.
Application to the Department of Labor and Industry for occupational disease benefits. Benefits denied. Applicant appealed to the Workmen’s Compensation Appeal Board. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Anthony J. Seneca, for appellant.
Warren S. Reding, with him Reding Rea, for appellee.
OPINION BY JUDGE BLATT, March 28, 1977:
John Stankowski appeals to this Court from an order of the Workmen’s Compensation Appeal Board (Board) which affirmed a referee’s denial of his claim for occupational disease benefits for loss of hearing pursuant to The Pennsylvania Occupational Disease Act[1] (Act).
Page 435
The only issue on appeal is whether or not the Board erred in affirming the referee’s conclusion that Stankowski’s petition, filed June 4, 1974, was barred by Section 315 of the Act, 77 P. S. § 1415. This section bars claims for compensation unless brought “within sixteen months after compensable disability begins,” and as interpreted by our Supreme Court, this sixteen-month period “runs from the date when the compensable disability, due to the occupational disease, begins and that date is necessarily a variable one depending upon when the pertinent medical diagnosis is competently established to the knowledge of the claimant.” Ciabattoni v. Birdsboro Steel Foundry Machine Co., 386 Pa. 179, 182, 125 A.2d 365, 367
(1956) (emphasis in original).
The referee did not make a finding with respect to specific date on which compensable disability began, but he did include the following statement as his fifth “finding of fact”:
After a careful study and review of the allegations made in the claim petition and the testimony of the claimant, your Referee grants the defendant’s motion for dismissal in reference to the claim petition being untimely filed and accordingly dismisses said petition for the reason that it was not filed within sixteen (16) months of the date of disability.
Our own examination of the record reveals that there are several possible dates mentioned, any one of which the referee might have determined to be the date on which Stankowski first had knowledge of his disability. One is the date on which, according to his testimony, Stankowski was placed on sick leave by his employer, December 23, 1971. He said that the plant physician that day “felt that I was no longer capable of performing my duties due to the fact that I couldn’t hear.” Another might have been December 29, 1972
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when he was placed on a disability pension after having been on sick leave for one year. A third might have been November 30, 1972 when, as he asserts on his claim petition, he became disabled. He also stated that he found out from his doctor that he was totally and permanently disabled in either August or November of 1972. If, however, the referee had selecte any of these dates as the date on which compensable disability began, Stankowski’s petition of June 4, 1974 would be untimely, for more than sixteen months from the latest of these dates had expired before the petition was filed.
Stankowski has argued that the Board erred in failing to permit his physician to testify regarding the date on which he, the claimant, had knowledge of his disability. While it is true that the referee did curtail the presentation of the claimant’s witnesses pending disposition of the employer’s motion to dismiss for untimeliness, the referee’s decision to dismiss the petition was based solely on Stankowski’s own testimony as to the several dates on which he might have first learned of his disability. Moreover, because the employer had not been permitted to present any evidence at all prior to the referee’s decision, we cannot accept Stankowski’s further contention that he was denied an opportunity to present “rebuttal” evidence.
We believe that Stankowski’s own evidence is sufficient to support the referee’s conclusion, as affirmed by the Board, that the petition was filed more than sixteen months after disability began. We will, therefore, affirm the decision of the Board that the claim petition here was barred by Section 315 of the Act.
ORDER
AND NOW, this 28th day of March, 1977, the order of the Workmen’s Compensation Appeal Board is hereby affirmed.
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