The opinion
Flood, J.:
The board supposes that the claimant is confronted by an inescapable dilemma: he is disqualified either because disability occurred more than four years after his last day of employment in February, 1955, or because his notice was given more than one hundred twenty days after the onset of disability. This dilemma is unreal. Its second major premise is false. The one hundred twenty day period for giving notice does not run from the date of onset of disability or even from the date when the claimant suspects that his disability may be due to the disease. It begins to run only when he “definitely knows that he is disabled by the occupational disease”. On this the cases are clear: Ciabattoni v. Birdsboro Steel Foundry & Machine Co., 386 Pa. 179 , 125 A. 2d 365 (1956); Boschak v. Vulcan Iron Works, 157 Pa. Superior Ct. 227 , 42 A. 2d 280 (1915).
The claimant did not definitely know that he was disabled by anthracosilicosis until December 10, 1959. He gave timely notice twelve days later.
The only real question to be decided is whether total disability occurred within four years of February *294 28, 1955, the claimant’s last day of employment with the defendant.
The claimant’s testimony, by stipulation, is that he has not worked since January 1959 due to shortness of wind and lung involvement. There is no contradiction of this testimony in the record. The only other testimony as to the date of disability in this scanty record is that of Dr. Cook. He stated that he examined the claimant on November 20, 1959, and ordered an X-ray examination. The X-ray examination was made by Dr. Mulligan, who on November 21, 1959, diagnosed the claimant’s condition as “advanced third stage anthracosilicosis with bilateral emphysema and complicating infection”. Dr. Cook first told the claimant he had anthracosilicosis about December 10, 1959, but his professional opinion was that this disease had totally disabled him on January 15, 1959.
It is clear from a review of the testimony that the board’s finding that total disability occurred on December 10, 1959 is without any support in the evidence. No one so testified, The X-ray report makes it clear, on the contrary, that the disability occurred not later than November 21, 1959. It seems like a capricious disregard of the claimant’s uncontradicted testimony to say that it occurred later than January 15, 1959.
More than this, the board reached its finding that the claimant became totally disabled on December 10, 1959, by illogically equating the date of the doctor’s “final firm diagnosis” with the date of the commencement of the claimant’s disability.
Finally, the board improperly disregarded the doctor’s opinion. It disposed of it in one sentence: “Since Dr. Cook did not see the claimant until November of 1959, his opinion that the claimant was totally disabled on January 15,1959, is speculative, conjectural and not predicated upon fact.” The board did not say it disbelieved the doctor’s testimony. It said, in effect, that *295 it had no probative value. It did not weigh it against contradictory testimony and reject it. There was no contradictory testimony. The statement that the doctor’s opinion is “speculative, conjectural and not predicated upon fact”, by itself, indicates that the board may have weighed the opinion and found it wanting. But the express reason given for this condemnation is that “Dr. Cook did not see the claimant until November of 1959”. This makes it clear that what the board did was to disregard the doctor’s opinion as to the date of disability because he did not see the claimant until some months later and this rendered him incompetent to give such an opinion. In substance the board did here precisely what we reversed it for doing in Gallihue v. Autocar Co., 169 Pa. Superior Ct. 303 , 82 A. 2d 73 (1951). The board has, in effect, held that a claimant is barred, even though his disability occurs within the four year limit, unless there is testimony from a doctor who saw him on or before the onset of total disability or before the end of the four year period. This is not the law.
I would remand the case to the board for further proceedings in accordance with this opinion.