Dissenting Opinion by
Senior Judge Kalish :I respectfully dissent.
When the deceased retired, he was being treated by his physician, Dr. E. F. Kleinschmidt, for pulmonary emphysema. Silicosis was never diagnosed as the cause of his disability. It was only after his death and autopsy some twelve years after retirement that Dr. Kleinschmidt changed his diagnosis and concluded that silicosis was indeed the cause of decedent’s disability which existed at the time of retirement. This widow then filed her death claim which was within the sixteen months of the date of death but beyond the four years from the date of his last employment. The only medical evidence presented was that of a Dr. J. M. Brandon, the pathologist, and Dr. Kleinschmidt. The referee concluded that there was no medical evidence to show that the decedent was disabled, reasoning that Dr. Kleinschmidt’s testimony was speculative.
The issues involved are (1) did claimant make out a claim since she filed her petition more than four *594years after the decedent’s last employment with the employer1 and (2) assuming she met that condition precedent or element of her right of action, was there an arbitrary disregard of her medical evidence by the fact finder.
Our well-recognized scope of review where the party with the burden of proof does not prevail before the fact finder is to determine whether there was an error of law and/or a capricious disregard of the evidence. Britten v. Workmen’s Compensation Appeal Board, 57 Pa. Commonwealth Ct. 610, 426 A.2d 1253 (1981).
In interpreting section 301(c), the court in Moore v. Dodge Steel Co., 206 Pa. Superior Ct. 242, 213 A.2d 130 (1965), indicated that the right of the widow to compensation under the Occupational Disease Act, is a separate cause of action, independent and not derivative from the right of her deceased husband. Thus, to create a right for the widow’s claim, death must have occurred within four years of his last employment.
Yet, at the same time, the court recognized that its duty to construe the Act liberally presented problems, particularly recognizing that occupational diseases are often latent and insidious. Such injuries may not be discoverable until some time after the employment which has caused the injury has ceased. It cannot reasonably be said that the injury dates necessarily from the last date of exposure and that the period begins to run from that date. Rather, it begins to run after it is discoverable and it becomes apparent that a compensable injury or disease was sustained. Cia*595battoni v. Birdsboro Steel Foundry & Machine Co., 386 Pa. 179, 125 A.2d 365 (1956); Roschak v. Vulcan Iron Works, 157 Pa. Superior Ct. 227, 42 A.2d 280 (1945).
The same reasoning applies to a death claim arising out of an occupational disease. The right to a cause of action arises when it becomes apparent that a compensable injury ivas sustained. How, otherwise, could the widow possibly have known that she had a valid claim until it was discoverable? To hold otherwise would convert section 301(c) into a statute of repose, contrary to the intent of the legislature.
While it is' true that the fact finder determines the credibility and weight of a witness’s testimony, even when unrefuted, for the referee to consider Dr. Kleinschmidt’s testimony as speculative when he was faced with no other conflicting medical testimony, and when the medical testimony was buttressed by the pathologist’s autopsy report, was unreasonable and a capricious disregard of such testimony. One of ordinary intelligence could not possibly have avoided this evidence in reaching a result. Britten.
Section 301(e) of the Pennsylvania Occupational Disease Act, Act of .Tune 21, 1939, P.D. 566, as amended, 77 P.S. §1401 (c) states, “compensation . . . shall mean only compensable disability or death . . . occurring within four years after the date of his last employment in such occupation or industry.”