Appeal from the Order of the Workmen's Compensation Appeal Board in case of John Zacek v. Republic Steel Corp. and Commonwealth of Pennsylvania, No. A-70516.
Linton L. Moyer, with him Ralph A. Davies, and Thomson, Rhodes & Grigsby, for appellant.
Benjamin L. Costello, with him Kenneth J. Yablonski, and James N. Diefenderfer, for appellees.
President Judge Bowman and Judges Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer. Judge Kramer did not participate in the decision in this case.
[ 25 Pa. Commw. Page 200]
Republic Steel Corporation appeals to this Court from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's grant of occupational disease benefits to John Zacek (Zacek).*fn1 Zacek filed his claim petition and was awarded benefits pursuant to the new occupational disease provisions of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq. (Act).*fn2 Our scope of review is the same as
[ 25 Pa. Commw. Page 201]
that followed in workmen's compensation injury cases; namely, where, as here, the Board has affirmed an award of a referee, we are limited to a determination of whether there is substantial competent evidence in the record to support any necessary findings of fact and whether the Board or referee has committed an error of law. See Workmen's Compensation Appeal Board v. Auto Express, Inc., 21 Pa. Commonwealth Ct. 559, 346 A.2d 829 (1975).
Zacek had been employed in Pennsylvania as a coal miner for well over forty-five years. During his last seventeen years in the mines, Zacek was an employee of Republic Steel. The referee found that Zacek's last day of employment with Republic Steel was December 31, 1973. The referee also found that on July 2, 1974, Zacek gave notice to Republic Steel of his alleged disability due to coal worker's pneumoconiosis. The referee further found Zacek totally disabled and therefore awarded benefits as provided in the Act.
In its appeal of the award, Republic Steel has preserved as its only issue for our review whether Zacek gave timely notice of his disability within the 120-day limitations period imposed by Section 311 of the Act, 77 P.S. § 631. Both parties have extensively briefed and competently argued the causes of their respective interpretations of the new provisions of Section 311. Unfortunately, we are unable to reach the merits of their arguments because of the absence of necessary findings by the referee.
As amended in 1972, Section 311 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
[ 25 Pa. Commw. Page 202]
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 ...