Appeal from the Order of the Workmen's Compensation Appeal Board in case of William R. Mountain v. Consolidation Coal Company and Commonwealth of Pennsylvania, No. A-71577.
Daniel L. Fassio, with him Edward C. Schmidt, Andrew Rose and Rose, Schmidt, Dixon, Hasley & White, for appellant.
Kenneth J. Yablonski, with him J. Scott Leckie and Benjamin L. Costello, for appellees.
Judges Crumlish, Jr., Mencer and Craig, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Mencer, Blatt, DiSalle, Craig and MacPhail. Judges Wilkinson, Jr. and Rogers did not participate. Opinion by Judge Craig. Judge MacPhail concurs in the result only. Dissenting Opinion by Judge Mencer. President Judge Bowman joins in this dissent.
Consolidation Coal Company has brought this appeal from an award of workmen's compensation benefits by the Workmen's Compensation Appeal Board (board) to claimant William R. Mountain for total disability resulting from coal miner's pneumoconiosis.
The only issue presented to us is whether claimant complied with Section 311 of The Pennsylvania Workmen's Compensation Act of June 2, 1915, P.L. 736, as amended (Act), 77 P.S. § 631, which, as applicable to occupational disease claims, requires that an employee notify his employer of his disability within 120 days of the date that he "knew or should have known of the existence of his disability resulting from an occupational disease and the disability's possible relationship to his employment." Zacek v. Republic Steel Corp., 25 Pa. Commonwealth Ct. 199, 202, 359 A.2d 842, 844 (1976).
After argument before a three-judge panel, this case was ordered for reargument before the court en banc because of the difficulties presented by the Section 311 notice question.
The undisputed basic facts of this case are that claimant worked in the coal mines for 40 years, from 1934 to 1974. He applied for federal black lung benefits in 1972, and a federal black lung award was made to him July 16, 1973. However, he continued to work until February 14, 1974. He began receiving federal benefits under the federal award in March 1974. On September 27, 1974 a physician definitively advised claimant that he was totally disabled from pneumoconiosis.
In addition, among the findings of the referee were the following:
8. On September 27, 1974 the claimant became permanently and totally disabled due to coal-worker's pneumoconiosis and said disability is a result of his exposure to a silica hazard during his total and cumulative employment in the coal mining industry.
9. Notice of claimant's disability was given to the defendant employer on November 25, 1974.
On appeal from the referee's decision to the board, the employer for the first time raised a question of notice under Section 311, specifically contending that the notice period began July 16, 1973, the date of federal black lung award. In that appeal, the employer also raised an allocation question, and attacked findings concerning exposure to hazard and the relationship ...