Jamieson v. Workmen's Compensation Appeal Board

691 A.2d 978, 1997 Pa. Commw. LEXIS 126
CourtCommonwealth Court of Pennsylvania
DecidedMarch 24, 1997
StatusPublished
Cited by11 cases

This text of 691 A.2d 978 (Jamieson v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jamieson v. Workmen's Compensation Appeal Board, 691 A.2d 978, 1997 Pa. Commw. LEXIS 126 (Pa. Ct. App. 1997).

Opinion

DOYLE, Judge.

Melvin Lee Jamieson (Claimant) appeals from an order of the Workmen’s Compensation Appeal Board (Board) which affirmed the decision of the Workers’ Compensation Judge (WCJ) denying Claimant’s petition for workers’ compensation benefits on the basis that Claimant, provided insufficient notice to two of his employers pursuant to Section 311 of the Workers’ Compensation Act (Act).

The relevant facts, as found by the WCJ, are as follows:

1. On November 19, 1990, [Cjlaimant ... filed an occupational disease claim petition [against Fluor Constructors, Inc. (Fluor) ] in which he alleges work-related emphysema, asthma, and severe lung obstruction, and in which he seeks total workers’ compensation benefits beginning in January of 1989.
3. On January 22, 1991, [Cjlaimant filed an occupational disease claim petition against Chicago Bridge & Iron Company [ (CBI) ], in which he alleges that his injury occurred at the Chevron Refinery in Philadelphia, Pennsylvania.
5. On April 5, 1991, [Cjlaimant filed an occupational disease claim petition against the Songer Construction Corporation in which he alleges that his injury occurred at the Sharon Steel Plant in Farrell, Pennsylvania.
8. The above petitions have been consolidated for hearings and decision.
[980]*9809. Claimant was employed as a boilermaker for over twenty years. His job included building, repairing and maintaining boilers, as well as pressure vessels and tanks.
10. Claimant was generally employed through a union. He worked an estimated 520 jobs during his twenty some years as a boilermaker. Jobs would range in duration from two weeks to two months.
11. Claimant worked for ... Fluor from October 25, 1988, through November 18, 1988. His job duties included repairing a coal-fired boiler, repairing ductwork, repairing metal, repairing welding, removing asbestos, and removing fiberglass insulation. Claimant testified that these jobs exposed him to lead, sulphar [sic], arsenic, asbestos, and fiberglass insulation. He stated that he became, sick on a gas which was produced while welding was performed on ductwork.
12. Claimant worked for ... CBI from April 18, 1988 through May 27, 1988. His duties included helping to rebuild a hydrofluoric acid plant, working inside a monel acid tank, and welding on condensers. Claimant testified that these jobs exposed him to dusty air conditions, causing him to spit up blood, or making his nose bleed. He also stated that a foul odor was produced while at work which caused his facial and neck skin to peel.
13. Claimant worked for ... Songer from November 2, 1987, through January 14, 1988, and from August 28, 1988, to September 6, 1988. His job duties included taking apart and rebuilding a blast furnace. Claimant testified that this job exposed him to dust, asbestos, fiberglass insulation, lead, coal dust, arsenic, graphite, and various gases.
14. Claimant testified that he reported getting sick while working for ... Fluor, to Ron Wilson, a safety man, and that he was laid off as a result in November of 1988. He further testified that he sought emergency room care within 36 hours after lay-off because he could not breathe and because he developed hives. He testified that he sought medical attention from Terrence E. Kilroy, M.D., in January of 1989, and that he has not worked since that time.
17. Dr. Kilroy testified that he saw [Claimant on January 16, 1989, at which time he diagnosed [Claimant as suffering from asthmatic bronchitis and chronic obstructive pulmonary disease. Dr. Kilroy opined that [Claimant’s employer was a contributing factor to his contracting of this disease. Insofar as it related to the date of examination, Dr. Kilroy’s testimony is accepted as credible and persuasive.
18. Claimant had actual knowledge of an existing disability resulting from a possible relationship to his employment on January 16, 1989.
19. Claimant filed workers’ compensation claims against all three defendants in the State of Ohio. His Ohio claims filed against ... CBI and Songer, are dated May 15, 1989 (the claim against ... Fluor is undated). The Ohio claims cite November 14, 1986, and January 16, 1989, as the dates of diagnosis, while citing January[] 1989’ as the injury discovery date.
20. Given the January 16, 1989, injury discovery date, it follows that [C]laim-ant was required to notify [his employers] of his alleged occupational disease by May 16, 1989, in order to have met the timeliness requirements of Section 311 of the Pennsylvania Workers’ Compensation Act. A close look at the record reveals that the copies of the Ohio claim applications, which [Claimant introduced into the record, are not time-stamped. The record provides no independent manner in which to verify when [Claimant actually filed his occupational disease claims against ... Fluor, CBI, and Songer, in Ohio.
[981]*98121. Claimant also argues that he notified CBI of his work-related medical problems while working for [CBI], and that his complaints to Mr. Wilson, an employee of Fluor, while he worked for Fluor in November of 1988 are tantamount to timely notice of occupational disease. At that time all ... [Claimant indicated was that he was sick [ (Notes of Testimony, 6/24/91, at 25) ]. This statement standing alone cannot be considered adequate notice. Moreover, the purported notice that [Claimant gave at these times predates the time that he had actual or constructive complaints [and] therefore do not rise to the level of timely notice within the meaning of the Act.

(WCJ’s decision at 1-4, Findings of Fact (F.F.) Nos. 1, 3, 5, 8-14, 17-21.) Because the WCJ concluded that Claimant failed to provide adequate notice under Section 811 of the Workers’ Compensation Act1 to Fluor, CBI, and Songer,2 the WCJ denied Claimant’s claim petitions. Claimant appealed to the Board which affirmed. This appeal followed.

On appeal, Claimant’s first argument, generic as to both CBI and Fluor, is that the WCJ erred as a matter of law in concluding that Claimant’s notice did not meet the requirements set forth in Section 311 because that notice predated the date of disability.

Section 311 provides in pertinent part as follows:

Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his behalf, or some of the dependents or someone in their behalf, shall give notice thereof to the employer within twenty-one days after the injury, no compensation shall be due until such notice be given, and, unless such notice be given within one hundred and twenty days after the occurrence of the injury, no compensation shall be allowed. However, in cases of injury resulting from ionizing radiation or any other cause in which the nature of the injury or its relationship to the employment is not known to the employe, the time for giving notice shall not begin to run until the employe knows, or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to his employment.

77 P.S. § 631.3

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Bluebook (online)
691 A.2d 978, 1997 Pa. Commw. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jamieson-v-workmens-compensation-appeal-board-pacommwct-1997.