Appeal from the Order of the Workmen's Compensation Appeal Board in case of Anne Heffelfinger v. Paris Neckwear Company, No. A-69108.
Wilbur C. Creveling, Jr., with him John P. Thomas and Walker, Thomas, Karess, Lipson & Zieger, for appellants.
Richard D. Director, with him Martin H. Philip and James N. Diefenderfer, for appellees.
Judges Kramer, Wilkinson, Jr., and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson.
[ 22 Pa. Commw. Page 544]
Claimant was employed for approximately ten years as a splitter, a job in which she cut material from rolls of cloth averaging from 200 to 220 pounds apiece. She testified that she stopped work on Friday, April 23, 1971, because of a pain in her back. The following Monday, April 26, 1971, claimant telephoned her employer and told the person who answered the telephone that she could not work because she was sick. Claimant never returned to work.
In August of 1971, after various unsuccessful attempts to treat her back injury, claimant was hospitalized, the injury was diagnosed as a herniated disc, and a laminectomy was performed. In November, 1971, claimant filed a claim petition alleging an accident on April 23, 1971, which resulted in the herniated disc. The first communication to the employer after claimant's April 26, 1971 sick call was in late November or early December, 1971, when a claims representative informed the employer that a claim petition had been filed.
The referee found a compensable injury and awarded benefits to the claimant. The employer appealed, asserting the claimant had failed to sustain her burden of proof that an accident occurred, that proper notice was lacking, and that the damages awarded were improper. The Workmen's Compensation Appeal Board (Board) affirmed the referee. It is from that decision that the employer now appeals.
Since we must agree with the appellant's contention that no proper notice was provided, we will dispense with
[ 22 Pa. Commw. Page 545]
any further discussion of a compensable accident or proper damages. Section 311 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 631 (Act), 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 ...