Appeal from the Order of the Workmen's Compensation Appeal Board in case of Ludwick Jesensek v. Republic Steel Corp. and Commonwealth of Pennsylvania, No. A-72494.
Edward A. McFarland, with him Ralph A. Davies, and Thomson, Rhodes & Grigsby, for petitioner.
Morrison F. Lewis, Jr., with him Vincent J. Quatrini, Jr., for respondent, Jesensek.
Lawrence W. Dague, Assistant Attorney General, for respondent, Commonwealth.
Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.
[ 39 Pa. Commw. Page 293]
Republic Steel Corporation has appealed from an order of the Workmen's Compensation Appeal Board which affirmed a referee's award of benefits to Ludwick Jesensek for total disability due to coal worker's pneumoconiosis.
Jesensek was employed in the coal mining industry in western Pennsylvania for 33 years. He left his job with Republic on January 28, 1974 and on March 12, 1975 filed a claim petition under Section 108(q) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 27.1(q), alleging that on February 15, 1975, he became totally disabled from coal worker's pneumoconiosis as a result of being exposed to the hazard of coal dust. The referee awarded compensation and assessed 50% of the amount of the award against the Commonwealth of Pennsylvania, and 50% against Republic pursuant to Section 305.1 of the Act, 77 P.S. § 411.1.
[ 39 Pa. Commw. Page 294]
Republic first says that the referee erred in finding that Jesensek had complied with the 120 day notice requirement of Section 311 of the Workmen's Compensation Act, 77 P.S. § 631, which 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 existence of the injury and its possible relationship to his employment. The term 'injury' in this section means, in cases of occupational disease, disability resulting from occupational disease.
The referee found the date of the injury to be February 15, 1975 when Jesensek's doctor reported to him by letter that he was totally disabled by coal miners pneumoconiosis. Republic's contention is that the referee in making that finding must erroneously have applied the "definite knowledge" standard of The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq. instead of the "know or should know" test of Section 311 of the Workmen's ...