Appeal from the Order of the Workmen's Compensation Appeal Board in case of Harold D. Katz v. The Evening Bulletin, No. A-70818.
James K. Martin, for appellants.
Thomas F. McDevitt, with him James N. Diefenderfer, for appellees.
Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer. Dissenting Opinion by Judge Crumlish, Jr.
This appeal under the provisions of The Pennsylvania Workmen's Compensation Act*fn1 (Act) is from the affirmance by the Workmen's Compensation Appeal Board (Board) of a referee's award of benefits. The appellants, the Evening Bulletin and its insurance carrier, have argued, alternatively, that (1) the claim of Harold D. Katz (claimant) is barred for failure to give timely notice and (2) the amount of the award was excessive because the referee and Board improperly based it on the claimant's concurrent employment. Since we reverse the Board's order on the notice issue, we need not reach the second contention.
On May 29, 1970, the claimant's primary employer was the United States Army Electronic Command. For about a year before that date, he had also worked part time for the Philadelphia Inquirer. The union, which supplied weekend workers for both the Inquirer and the Bulletin, sent him to the Bulletin to work on May 29, 1970. As he was leaving work after completing his shift -- his first and only at the Bulletin -- he fell into a manhole on the premises and sustained injuries.
At the hearing, the claimant's testimony concerning his attempt to notify the Bulletin of the accident was as follows:
A. I called the foreman at the Inquirer who in turn to my knowledge notified the union or the shop steward. This is what I was told to do. Q. You never told the Bulletin directly that you had a fall? You called somebody at the Inquirer ; am I correct? A. I called someone at the Bulletin. Who it was I don't know. They referred me to the union. [The record later indicates that he found 'no one there at the union'.] Q. When did you call someone and who was it? A. I don't know. It was a clerk. I
have no idea who it was. Q. When in point of time did this take place? A. The next day. Q. Who was it that you talked to? A. I spoke to the foreman who was on duty at that time. Q. At the Inquirer or Bulletin ? A. At the Inquirer. (Emphasis added.)
The claimant's attorney, different from counsel on appeal, sent the Bulletin a letter 17 days later but failed to indicate that the injuries were work related*fn2 or that the claimant had ever worked for the Bulletin. There is no other indication in the record that the Bulletin had knowledge of or received notice of a work-related accident during the remainder of 1970.
The applicable notice requirement at the time of the accident was found in Section 311 of ...