Workmen's Compensation Appeal Bd. v. Republic Steel Corp.

• Decision Date: 26 July 1977
• Citation: 375 A.2d 1369,31 Pa.Cmwlth. 301
• Parties: WORKMEN'S COMPENSATION APPEAL BOARD of the Commonwealth of Pennsylvania and John Durick v. REPUBLIC STEEL CORPORATION, Appellant, and Commonwealth of Pennsylvania. REPUBLIC STEEL CORPORATION, Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD, John Durick and Commonwealth of Pennsylvania, Respondents.
• Court: Pennsylvania Commonwealth Court

Page 1369

375 A.2d 1369

31 Pa.Cmwlth. 301

WORKMEN'S COMPENSATION APPEAL BOARD of the Commonwealth of

Pennsylvania and John Durick v. REPUBLIC STEEL CORPORATION, Appellant, and Commonwealth of

Pennsylvania.

REPUBLIC STEEL CORPORATION, Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD, John Durick and Commonwealth of Pennsylvania, Respondents.

Commonwealth Court of Pennsylvania.

Argued May 6, 1977.

Decided July 26, 1977.

Thomson, Rhodes & Grisby, Linton L. Moyer, Pittsburgh, for appellant.

Kenneth J. Yablonski, Washington, Mary Ellen Krober, Harrisburg, Benjamin L. Costello, U. M. W. A. Dist. 5, Pittsburgh, for appellees.

James N. Diefenderfer, Allentown, for Workmen's Compensation Appeals Bd.

Before CRUMLISH, Jr., WILKINSON and BLATT, JJ.

OPINION

BLATT, Judge.

Republic Steel Corporation (Republic) appeals here from two orders of the Workmen's Compensation Appeal Board (Board). The first order directed Republic to pay a portion of an award made to John Durick (claimant) by a referee for full disability due to coal worker's pneumoconiosis and also ordered a remand for further findings of fact. The second order followed the remand and required Republic to reimburse certain litigation costs to the claimant's union. Republic's appeals from these orders are herein consolidated.

The claimant was employed in the bituminous mining industry of Pennsylvania for a period of 37 years, during the last 24 by Republic. He left his job on March 9, 1974 and filed a claim petition on September 27, 1974 under Section 108(q) of The Pennsylvania Workmen's Compensation Act ¹ (Act) alleging that he had become totally disabled on August 15, 1974 from coal worker's pneumoconiosis as a result of being exposed to the hazard of coal dust. At the referee's hearings, the claimant testified personally and presented the deposition of an examining physician. The referee awarded compensation, finding that the claimant was totally disabled due to coal worker's pneumoconiosis and that this disability occurred on August 15, 1974. Both parties appealed this decision: Republic urging the claimant had not given it timely notice of his disability, and the claimant seeking reimbursement of the costs of the claim petition. The Board affirmed the referee's compensation order and ordered a remand for a finding of fact as to whether or not the contest in this case was reasonable. Pursuant to the remand order, the referee then held another hearing after which he assessed Republic the cost of the claimant's doctor's deposition as well as the costs of reproducing that deposition, and further ordered that these costs be reimbursed to the claimant's union. The Board affirmed this order and these appeals by Republic followed.

In a workmen's compensation case where the party with the burden of proof prevailed below, review by this Court is limited to a determination of whether or not the findings of fact are consistent with each other and the conclusions of law and whether or not they can be sustained without a capricious disregard of competent evidence, leaving to the referee the resolution of conflicts in the testimony and questions of credibility. McIntosh v. Borough of Pleasant Hills (Workmen's Compensation Appeal Board), 25 Pa.Cmwlth. 311, 360 A.2d 273 (1976). Republic argues here that (1) the claimant is ineligible for compensation because he failed to give Republic notice of his disability within the period provided by the Act and (2) the Board erred as a matter of law in directing Republic to reimburse the costs of litigation to the claimant's union.

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

"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 resulting from ionizing 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.)

The referee found that the claimant was totally disabled as of August 15, 1974, the date on which the claimant's physician examined him and informed the claimant that he was totally and permanently disabled from coal worker's pneumoconiosis. The claimant notified Republic of his disability by certified letter on September 23, 1974. Republic argues here that the claimant's disability should be measured from his last day of work (March 9, 1974) and that, because he did not give Republic notice of his disability within 120 days of this date, the claimant is ineligible for compensation. Simply stated, Republic contends, that because the claimant testified that he had been told by a physician some time prior to his leaving work that he had coal worker's pneumoconiosis, he knew or should have known that he was disabled for that reason on his last day of work, and that his notice of disability, as filed here, was therefore untimely.

In Industrial Services Contracting v. Wilson, 28 Pa.Cmwlth. 83, 91, 367 A.2d 377, 381 (1977), we held that an individual is not disabled within the meaning of Section 311 until (1) he is disabled, and (2) he either...