Appeal from the order of the Workmen's Compensation Appeal Board in case of Stefan Czepurnyj v. Bethlehem Steel Corporation, No. A-68128.
Hymen Schlesinger, with him Isadore Schlesinger, for appellant.
Samuel P. Gerace, with him Robert C. Jones, Jones, Gregg, Creehan & Gerace, and James N. Diefenderfer, for appellees.
Judges Crumlish, Jr., Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 20 Pa. Commw. Page 306]
This is a direct administrative appeal. The Workmen's Compensation Appeal Board of Pennsylvania (Board) reversed a referee's award of compensation for total disability and acknowledged the employer's right to subrogation of the amount paid to a claimant under a non-occupational insurance plan in these peculiar circumstances.
[ 20 Pa. Commw. Page 307]
On November 20, 1972, Stefan Czepurnyj (Appellant) filed a claim petition under the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq., alleging that an accident in the course of his employment with Bethlehem Steel Corporation (Appellee) had occurred on July 17, 1971. He alleged that he had slipped on an oily floor spot as he was lifting a 150 pound steel plate to a steel press which allegedly resulted in a spinal injury rendering him totally disabled. Appellee's answer denied the accident and disability. In it, two basic issues were proffered: 1) that timely notice of the accident had not been given, and 2) that it was entitled to subrogation for the payments made to Appellant under a private insurance plan for an injury, occurring on approximately this same date, believed to be beyond the coverage of the Workmen's Compensation Act. Following three hearings, the referee awarded total disability compensation, finding that Appellant had suffered a compensable accident which rendered him totally disabled, that proper notice of the accident was given, and that subrogation was in order. On appeal, the Board substituted its findings for those of the referee without taking additional evidence, and reversed the award of compensation but, nevertheless, approved the subrogation.
Since the proceedings before the referee as well as the Board postdated the 1972 Amendments to the Workmen's Compensation Act, the respective evidentiary review functions of the referee and Board are controlled by our decision in Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973). As the Board did not take additional evidence, the referee was the ultimate finder of fact, and his determinations of the credibility of witnesses and the weight to be given the evidence were conclusive on the Board and on us. We must, thus, conclude that the Board erred in substituting its findings for those of the referee,
[ 20 Pa. Commw. Page 308]
and we must now review the referee's findings for substantial evidence as the party having the burden of proof prevailed in its presentation to the referee. Joseph Horne Co. v. Workmen's Compensation Appeal Board, 15 Pa. Commonwealth Ct. 411, 327 A.2d 395 (1974); Mauchly Associates v. Workmen's Compensation Appeal Board, 15 Pa. Commonwealth Ct. 296, 325 A.2d 496 (1974).
Consistent with this review, we reverse the Board, and reinstate the referee's award, with subrogation rights to Appellee.
First, we consider Appellee's contention that the instant claim is barred because Appellant failed to give timely notice of the accident as is required by Section 311, 77 P.S. § 631 (Supp. 1974-75). At the time pertinent to this appeal, Section 311 provided: "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 accident, 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." Recognizing that this section is to be liberally construed, it is, nevertheless, mandatory and bars a claim where it is ...