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SHENANGO STEEL CORPORATION v. COMMONWEALTH PENNSYLVANIA (09/14/79)

decided: September 14, 1979.

SHENANGO STEEL CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CHARLES O. WRIGHT, RESPONDENTS



Appeal from the Order of April 27, 1978 of the Workmen's Compensation Appeal Board in case of Charles O. Wright v. Shenango Steel Corp. and Commonwealth of Pennsylvania, No. A-74196.

COUNSEL

Stuart W. Benson, III, with him Brandt, Milnes, Rea & Malone, for petitioner.

Edwin H. Beachler, with him McArdle, Caroselli, Spagnolli & Beachler, for respondent.

Judges Wilkinson, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 46 Pa. Commw. Page 5]

Petitioner Shenango Steel Corporation (Shenango) appeals to this Court from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's award of workmen's compensation benefits to Charles O. Wright (Wright). Wright initially sought workmen's compensation benefits pursuant to Section 306(a) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511, alleging that he was totally and permanently disabled due to silicosis, pulmonary emphysema, and asthmatic bronchitis contracted while he was employed by Shenango. Shenango does not dispute that Wright is totally and permanently disabled or that his disability resulted from exposure to a silica hazard during the course of his employment with Shenango. The only issue raised by Shenango is whether the order of the Board should be reversed and Wright's claim petition dismissed because Wright failed to give timely notice of his occupational disease to Shenango as required by Section 311 of the Act, 77 P.S. § 631. We agree with the referee and the Board that Wright's notice to Shenango was timely and, accordingly, we affirm.

Our scope of review in a case of this type was recently summarized by our Supreme Court in Katz v. Evening Bulletin, Pa. , , 403 A.2d 518, 519 (1979):

Whether notice has been given is a question of fact. . . . The referee is the ultimate factfinder where, as here, the appeals board takes no additional evidence. . . . And the facts found by the referee are binding on reviewing courts. . . . The referee found that the employer received adequate notice. . . . Thus, we are limited to an examination of whether there is competent, substantial evidence in the record to support

[ 46 Pa. Commw. Page 6]

    the fact-finder's determination. (Citations omitted.)

Of course, questions of credibility and the resolution of conflicting testimony are matters to be determined by the referee and not this Court. The referee may accept or reject the testimony of any witness in whole or in part and "If the testimony accepted constitutes such relevant evidence as a reasonable mind might accept as adequate to support a conclusion . . . we are precluded from disturbing findings supported by the testimony even though there is evidence to the contrary." (Citation omitted.) American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 595, 377 A.2d 1007, 1010 (1977). The party who prevails below is entitled to the benefit of the most favorable inferences to be drawn from the evidence on appeal. Id.

With these principles in mind, we turn to the case before us. Timely notice to claimant's employer is a mandatory requirement of a workmen's compensation claim. Workmen's Compensation Appeal Board v. Czepurnyj, 20 Pa. Commonwealth Ct. 305, 308, 340 A.2d 915, 917 (1975). The notice ...


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