Appeal from the Order of the Workmen's Compensation Appeal Board in case of Michael S. Novaselec v. Jones & Laughlin Steel Corporation, No. A-67742.
Joseph M. Ludwig, with him Gustav M. Berg, for appellant.
Henry J. Wallace, Jr., with him Reed, Smith, Shaw & McClay, and James N. Diefenderfer, for appellees.
Judges Crumlish, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.
[ 16 Pa. Commw. Page 551]
This workmen's compensation case turns on whether the claimant, Michael S. Novaselec gave notice of his injury in an industrial accident to his employer within 120 days after its occurrence, as required by Section 311 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 631 (Supp. 1974-1975).
Mr. Novaselec, an employee of Jones & Laughlin Steel Corporation, filed a claim petition on January 24, 1967, averring that he struck a steel column while driving
[ 16 Pa. Commw. Page 552]
a tractor on February 6, 1966, sustaining back injuries. The employer's answer alleged, inter alia, that no notice of the injury was provided within the time fixed by the Act.
At a referee's hearing conducted on August 2, 1967, the claimant stated that his accident with the tractor was witnessed by Mr. Carmen Ross, an assistant superintendent of the employer's industrial plant; that he, the claimant, continued to work, with discomfort to his back, until March 1966, after which he was unable to work; that in May of 1966 he visited his employer's doctor who advised against continuing to work; and that he underwent an operation on his back on May 18, 1966.
The referee made his report and decision in April 1969, in which he found that no notice of the "happening of an accident" was given within the statutory period. On appeal by the claimant, the Workmen's Compensation Board affirmed the referee's disallowance of compensation on the ground that while the record might establish that the assistant superintendent witnessed an accident, it did not contain proof that the assistant supervisor knew that the claimant had been injured in the accident. The claimant appealed to the Court of Common Pleas of Allegheny County in January 1970, which by a one sentence holographic order of the late Judge Lencher, dated June 6, 1972, remanded the case to the Board "there to proceed sec. leg. and sec. reg. " No explanation of the two and one-half years delay appears in the record.
The parties agreed that Judge Lencher meant that there should be further hearings and the Board ordered such. On November 27, 1972, the claimant again testified. In addition to repeating his account of Mr. Ross's witness of the accident, he testified on direct examination that because of back pain he worked only part of the day ...