Carrier Coal Enterprises v. Workmen's Compensation Appeal Board

544 A.2d 1111, 118 Pa. Commw. 201, 1988 Pa. Commw. LEXIS 595
CourtCommonwealth Court of Pennsylvania
DecidedJuly 27, 1988
DocketAppeal No. 3386 C.D. 1986
StatusPublished
Cited by17 cases

This text of 544 A.2d 1111 (Carrier Coal Enterprises 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
Carrier Coal Enterprises v. Workmen's Compensation Appeal Board, 544 A.2d 1111, 118 Pa. Commw. 201, 1988 Pa. Commw. LEXIS 595 (Pa. Ct. App. 1988).

Opinion

Opinion by

Judge Smith,

Carrier Coal Enterprises (Employer) appeals from a Workmen's Compensation Appeal Board (Board) decision affirming the referees award of benefits to John B. Balia (Claimant) under The Pennsylvania Occupational Disease Act (Act).1 Questions presented for review pertain to the referees determination as to when notice of Claimants disability was given to Employer and whether the referee exceeded the scope of the Boards remand order.

Claimant was employed as a fireman and pump operator for Employer from December, 1975 until May 31, 1977.2 He initially filed a claim petition under Section 108 of the Act, 77 P.S. §1208, on February 20, 1981 alleging total disability from black lung disease as of May 31, 1977. Claimant voluntarily withdrew this petition, and an order dated April 8, 1982 was entered withdrawing the petition without prejudice. Claimant filed a new petition under Section 108 on March 31, 1982 alleging total disability from anthracosilicosis as of February 13, 1981.

The referee initially found that Employer received notice of Claimants disability on April 5, 1982; that [204]*204Claimant became permanently and totally disabled from anthracosilicosis on February 13, 1981 due to the accumulated effect of his exposure to silica hazard from all of his employers; and that Claimant was entitled to permanent and total disability benefits. Referees Decision of April 4, 1983, Findings of Fact Nos. 4, 6; Conclusion of Law No. 2. The Board by order dated July 5, 1984 reversed and remanded to the referee to determine the date Claimant learned of his work-related disability and whether Claimant complied with the Acts 120-day notice provision. The referees other findings were affirmed and not to be changed by the referee.

On remand, the referee found that Claimant learned of his work-related disability, on February 13, 1981 when so informed by his physician. The referee also determined that Finding of Fact No. 4, previously affirmed by the Board, was in error and, without taking additional evidence, found that the date of Claimants notice of disability to Employer was February 20, 1981 instead of April 5, 1982. Referees Decision of January 17, 1985, Finding of Fact No. 2. As a result, the referee determined that Claimant met the Acts 120-day notice provision and again awarded benefits. The Board thereafter concluded that the remand order was overly restrictive and that the referee committed no error in exceeding its scope. The Board affirmed the referee, but deleted Finding of Fact No. 5 as inconsistent and an obvious typographical error.3 Employer then petitioned this Court for review.

This Courts scope of review of Board decisions in a workers’ compensation occupational disease case is limited to determining whether an error of law was committed, whether any necessary findings of feet are not [205]*205supported by substantial evidence, or whether constitutional rights have been violated. Bucyrus-Erie Company v. Workmen's Compensation Appeal Board (Gourn), 106 Pa. Commonwealth Ct. 185, 525 A.2d 881 (1987). Moreover, where the Board, as here, takes no additional evidence, the ultimate fact-finder is the referee whose findings of fact, if supported by substantial evidence, must be accepted. Sokol v. Workmen's Compensation Appeal Board (State Regional Correctional Facility), 91 Pa. Commonwealth Ct. 396, 497 A.2d 670 (1985).

Employer initially contends that Claimant had actual knowledge of his work-related disability by May of 1977 and not February 13, 1981, the date Claimant received medical confirmation of his condition; and therefore, Claimant is ineligible for compensation since his notice of disability to Employer was untimely. Employer cites testimony by Claimant that he had work-related breathing problems in May of 1977 which interfered with his work performance. N.T., pp. 56-68. Timely notice of disability to Employer is a mandatory prerequisite to recovery of benefits. Arcadia Coal Company v. Workmen's Compensation Appeal Board (Kubalic), 79 Pa. Commonwealth Ct. 148, 468 A.2d 906 (1983). Whether notice has been given is a question of fact and where the referee, as here, concludes that notice was proper, this Court must determine whether substantial evidence exists in the record to support that finding. Thomas v. Workmen's Compensation Appeal Board (Atlantic Refining Company), 55 Pa. Commonwealth Ct. 449, 423 A.2d 784 (1980).

Section 311 of the Act, 77 P.S. §631, provides in pertinent part:

Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his behalf, . . . shall give notice thereof to the employer . . . within one hundred [206]*206and twenty days after the occurrence of the injury, no compensation shall be allowed. However, in cases of injury resulting from any . . . 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. The term ‘injury’ in this section means, in cases of occupational disease, disability resulting from occupational disease.

Mere suspicion, or even certain knowledge of disease or disability by Claimant, standing alone, does not trigger the notice period contrary to Employer’s assertion otherwise. Republic Steel Corporation v. Workmen's Compensation Appeal Board (Zacek), 47 Pa. Commonwealth Ct. 74, 407 A.2d 117 (1979). Even if Claimant inferred that he had a disease while still working, he had no reason to know that his total disability was caused by anthracosilicosis until so informed by a physician. Consolidation Coal Company v. Workmen's Compensation Appeal Board (Mountain), 47 Pa. Commonwealth Ct. 64, 407 A.2d 134 (1979).

Claimant’s physician, Dr. C. J. Aquilina, testified that Claimant’s anthracosilicosis was causally related to his employment and that Claimant became totally and permanently disabled on February 13, 1981. N.T., pp. 23-24. According to Claimant’s testimony, he was verbally informed on February 13, 1981 of his condition. N.T., p 51. We therefore find substantial evidence in the record to support the referee’s determination, and no error by the Board, since the record indicates February 13, 1981 as the date Claimant first knew of his work-related anthracosilicosis within the meaning of Section 311.

[207]*207Employer also contends that Claimants new petition on its face violates Section 311 because the dates alleged indicate that notice to Employer was beyond the 120-day limitation period.4

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Carrier Ce v. Wcab (Balla)
544 A.2d 1111 (Commonwealth Court of Pennsylvania, 1988)

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Bluebook (online)
544 A.2d 1111, 118 Pa. Commw. 201, 1988 Pa. Commw. LEXIS 595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carrier-coal-enterprises-v-workmens-compensation-appeal-board-pacommwct-1988.