Shenango Steel Corp. v. Commonwealth

405 A.2d 1086, 46 Pa. Commw. 3, 1979 Pa. Commw. LEXIS 1975
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 14, 1979
DocketAppeal, No. 1189 C.D. 1978
StatusPublished
Cited by9 cases

This text of 405 A.2d 1086 (Shenango Steel Corp. v. Commonwealth) 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
Shenango Steel Corp. v. Commonwealth, 405 A.2d 1086, 46 Pa. Commw. 3, 1979 Pa. Commw. LEXIS 1975 (Pa. Ct. App. 1979).

Opinion

Opinion by

Judge MacPhail,

Petitioner Shenango Steel Corporation (Sbenango) appeals to tbis Court from an order of tbe Workmen’s Compensation Appeal Board (Board) affirming a referee’s award of workmen’s compensation benefits to Charles 0. Wrigbt (Wrigbt). Wrigbt initially sought workmen’s compensation benefits pursuant to Section 306(a) of The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §511, alleging that be was totally and permanently disabled due to silicosis, pulmonary emphysema, and asthmatic bronchitis contracted while be was employed by Sbenango. Sbenango does not dispute that Wrigbt is totally and permanently disabled or that bis disability resulted from exposure to a silica hazard during tbe course of bis employment with Sbenango. Tbe only issue raised by Sbenango is whether tbe order of tbe Board should be reversed and Wright’s claim petition dismissed because Wrigbt failed to give timely notice of bis occupational disease to Sbenango as required by Section 311 of tbe Act, 77 P.S. §631. We agree with tbe referee and tbe Board that Wright’s notice to Sbenango was timely and, accordingly, we affirm.

Our scope of review in a case of tbis type was recently summarized by our Supreme Court in Katz v. Evening Bulletin, Pa. , , 403 A.2d 518, 519 (1979):

Whether notice has been given is a question of fact. . . . The referee is tbe ultimate factfinder where, as here, tbe appeals board takes no additional evidence. . . . And tbe facts found by the referee are binding on reviewing courts. . . . The referee found that tbe employer received adequate notice. . . . Thus, we are limited to an examination of whether there is competent, substantial evidence in tbe record to support [6]*6the fact-finder’s determination. (Citations omitted.)

Of course, questions of credibility and the resolution of conflicting testimony are matters to be determined by the referee and not this Court. The referee may accept or reject the testimony of any witness in whole or in part and “If the testimony accepted constitutes such relevant evidence as a reasonable mind might accept as adequate to support a conclusion ... we are precluded from disturbing findings supported by the testimony even though there is evidence to the contrary.” (Citation omitted.) American Refrigerator Equipment Co. v. Workmen’s Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 595, 377 A.2d 1007, 1010 (1977). The party who prevails below is entitled to the benefit of the most favorable inferences to be drawn from the evidence on appeal. Id.

With these principles in mind, we turn to the case before us. Timely notice to claimant’s employer is a mandatory requirement of a workmen’s compensation claim. Workmen’s Compensation Appeal Board v. Czepurnyj, 20 Pa. Commonwealth Ct. 305, 308, 340 A.2d 915, 917 (1975). The notice requirements as set forth in Section 311 of the Act, 77 P.S. §631, provide that:

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 result[7]*7ing from ionising 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. The term ‘injury’ in this section means, in cases of occupational disease, disability resulting from occupational disease. (Emphasis added.)

For the purposes of Section 311, then, the computation of time for giving notice of an occupational disease runs from the date that a claimant (1) is disabled and (2) knows or should know through the exercise of reasonable diligence that he or she is disabled and that the disability is possibly related to his or her employment. Industrial Services Contracting, Inc. v. Wilson, 28 Pa. Commonwealth Ct. 83, 91, 367 A.2d 377, 381 (1977). There is no question here that Wright was disabled. • A question does arise, however, over when Wright knew or should have known of his disability and of its possible relationship to his employment.

Wright had worked for Shenango from 1955 until February, 1974 when he suffered a heart attack. When Wright was discharged from the hospital following his heart attack, the diagnosis of his condition was acute anterior myocardial infarction due to arteriosclerotic heart disease, chronic bronchitis, type 4, Lipoprotein phenotype, chronic bronchitis, and asthma. There was no mention in the discharge order of any chronic obstructive lung disease. Over the next year, Wright’s treating physicians, Dr. Tichworth and Dr. Corpuz, completed sickness and accident reports on behalf of Wright in which they stated that his condition was due to acute arterio[8]*8myocardial infarction and not to injury or illness related to his employment.

On February 21, 1975, Dr. Corpuz conducted pulmonary function studies on Wright. By way of deposition, Dr. Corpuz testified that these studies showed that Wright had a moderate degree of restrictive and obstructive disease consistent with pneumonconiosis and that Wright’s condition was related to his occupation. Dr. Corpuz further testified that in a five to ten minute telephone conversation occurring approximately a week after the pulmonary function studies, he informed Wright of the results of the studies. The telephone conversation was not noted in Dr. Corpuz’s file on Wright. On cross-examination, Dr. Corpuz testified that in February, 1975, he concurred in Wright’s desire to apply for disability because his combined cardiac and pulmonary conditions would no longer permit him to work. Throughout cross-examination and recross-examination Dr. Corpuz repeatedly stated that Wright’s disability was due to combined cardiac and pulmonary conditions. Dr. Corpuz further testified that he did not recall explaining to Wright that his pulmonary condition resulted from his employment.

Wright testified that over a five year period he was increasingly bothered by difficulties in his breathing and that on April 10, 1976 he was examined by Dr. J. D. Silverman in relation to his breathing problems. It was on that date, he said, that he first learned that he was possibly suffering from an occupational disease. He also testified that never before that date had he been treated for any lung condition nor had he been told when he was discharged from the hospital that he had chronic bronchitis.

On April 13, 1976, Wright sent notice to Shenango that he was “totally and permanently disabled as a result of the presumed occupational related pulmón[9]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Blair v. Workmen's Compensation Appeal Board
471 A.2d 1289 (Commonwealth Court of Pennsylvania, 1984)
Karsaba v. Workmen's Compensation Appeal Board
454 A.2d 682 (Commonwealth Court of Pennsylvania, 1983)
Bachman v. Workmen's Compensation Appeal Board
452 A.2d 300 (Commonwealth Court of Pennsylvania, 1982)
Lehigh Valley Coal Sales Co. v. Commonwealth
443 A.2d 1339 (Commonwealth Court of Pennsylvania, 1982)
Forschner v. Commonwealth, Workmen's Compensation Appeal Board
431 A.2d 374 (Commonwealth Court of Pennsylvania, 1981)
Bud Smail Lincoln Mercury v. Commonwealth
430 A.2d 719 (Commonwealth Court of Pennsylvania, 1981)
United States Steel Corp. v. Commonwealth
430 A.2d 349 (Commonwealth Court of Pennsylvania, 1981)
Crouse v. Commonwealth
426 A.2d 749 (Commonwealth Court of Pennsylvania, 1981)
Snyder v. Commonwealth
412 A.2d 694 (Commonwealth Court of Pennsylvania, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
405 A.2d 1086, 46 Pa. Commw. 3, 1979 Pa. Commw. LEXIS 1975, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shenango-steel-corp-v-commonwealth-pacommwct-1979.