Greene County Memorial Hospital v. Commonwealth

432 A.2d 1166, 61 Pa. Commw. 82, 1981 Pa. Commw. LEXIS 1699
Commonwealth Court of Pennsylvania·Decided August 4, 1981·No. Appeal, No. 1687 C.D. 1980·Published·Cited by 7 cases

Opinion

Opinion by

Judge MacPhail,

Greene County Memorial Hospital (Employer) appeals here from a decision of the Workmen’s Com[84] pensation Appeal Board (Board), dated July 10, 1980, that affirmed the referee’s decision granting workmen’s compensation benefits to Helen I. Cole (Claimant).

Claimant worked for Employer for more than 15 years as a licensed practical nurse. She alleged that she injured her back while lifting and turning a very heavy patient. Claimant was treated for low back pain in Employer’s emergency room on several occasions beginning in March 1975. She continued to work until April 21 when she became totally disabled. Claimant was hospitalized on two occasions, first at Employer in May 1975 and subsequently at West Virginia University Hospital in July 1975. Claimant was found, inter alia, to be suffering from mild scoliosis of the spine, osteoporosis and degenerative arthritis of the spine. '

On October 4, 1976, Claimant filed for workmen’s compensation benefits under The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §1, alleging that on March 19, 19751 she had sustained a work-related injury. Employer denied liability.

The first of several hearings was held in December, 1976. The referee issued his initial decision on April 19, 1978, in which he held that Claimant had sustained a work-related injury and was entitled to compensation benefits. Employer appealed to the Board. The Board set aside the referee’s determination and remanded the case to him for further clarification of the finding that Claimant had given Employer notice pursuant to the Act.2 After conducting additional [85] hearings the referee again awarded Claimant benefits. On appeal, the Board affirmed the referee. Employer appealed to this Court.

The law in workmen’s compensation cases is well settled. Where the party with the burden of proof prevails before the referee and the Board takes no additional evidence, our review is limited to whether any constitutional rights were violated, an error of law was committed or a necessary finding of fact was unsupported by substantial evidence. American Refrigerator Equipment Co. v. Workmens Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 377 A.2d 1007 (1977).

In its appeal to the Court, Employer asserts that there is not substantial evidence in the record to support two of the referee’s findings of fact, specifically (1) that Claimant gave notice, as required by the Act, of her injury to Employer and (2) that Claimant’s disability was caused by a work-related injury.

Section 311 of the Act 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.

77 P.S. §631. Sections 312 and 313 of the Act further provide that the notice shall include the time, place and nature of the injury and that the notice may be given to an employee’s superior. 77 P.S. §§632 and 633.

[86] At the initial hearing Claimant testified she had told the supervising nurse, who was on duty the night of the incident, that she had hurt her back but that no incident3 report had been filed because Claimant thought she had only strained a muscle. Claimant further testified that she subsequently told all the supervising nurses of the incident. In her claim petition Claimant. stated that on May 12, 1975, she had orally informed Mrs. Reese, the head of the nursing department, that she had injured her back lifting a patient.4 At the time of the second series of hearings, Mrs. Reese was an invalid and was both physically and mentally unable to testify in person or by deposition.

As its evidence on the issue of notice, Employer entered the deposition of three nurses who supervised Claimant before and after the incident. One of these nurses denied all knowledge of the incident but admitted on cross-examination that the incident could have happened without her being aware of it. Another nurse could not remember being told of the incident and the third nurse remembered talking with Claimant about the incident sometime during the summer months.

It is well settled that matters of credibility and conflicting testimony as to whether notice has been given is a question of fact for the referee. Canterna v. United States Steel Corp., 12 Pa. Commonwealth Ct. 579, 317 A.2d 355 (1974). Further, facts found by [87] the referee, supported by substantial evidence are binding on the review court. Katz v. Evening Bulletin, 485 Pa. 536, 403 A.2d 518 (1979). “Substantial evidence” is such relevant evidence as . a reasonable mind might accept as adequate to support a conclusion. Workmens Compensation Appeal Board v. Auto Express, Inc., 21 Pa. Commonwealth Ct. 559, 346 A.2d 829 (1975).

In his second decision the referee stated he had resolved the conflicting notice testimony in favor of Claimant and found that Employer had notice on March 12, 1975. Our review of the record convinces us that although he could have found otherwise, we cannot say that his finding was not based on substantial evidence.

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Greene County Memorial Hospital v. Commonwealth, 432 A.2d 1166, 61 Pa. Commw. 82, 1981 Pa. Commw. LEXIS 1699 (Pa. Ct. App. 1981).

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