Appeal from the Order of the Workmen's Compensation Appeal Board in case of John Zacek v. Republic Steel Corporation and Commonwealth of Pennsylvania, No. A-73552.
Linton L. Moyer, with him Thomson, Rhodes & Grigsby, for petitioner.
Kenneth J. Yablonski, with him Benjamin L. Costello, for respondents.
Judges Mencer, DiSalle 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. Dissenting Opinion by Judge Mencer. President Judge Bowman joins in this dissent.
This appeal of Republic Steel Corporation, employer, from the award of workmen's compensation benefits by the Workmen's Compensation Appeal Board (board) to claimant Zacek for total disability resulting from coalworker's pneumoconiosis, is again before this court after we earlier remanded it for additional findings of fact. Zacek v. Republic Steel Corp., 25 Pa. Commonwealth Ct. 199, 359 A.2d 842 (1976).
The only issue before us now, as in Zacek, supra, is whether the claimant was timely in giving the 120-day notice to the employer required by Section 311 of The Pennsylvania Workmen's Compensation Act of June 2, 1915, P.L. 736, as amended, (Act), 77 P.S. § 631.
After this case had returned to this court and had been argued before a three-judge panel, it was then ordered for reargument before the court en banc because of the difficulties presented by the Section 311 notice question.
Section 311,*fn1 as a condition of allowing compensation, requires that the employer be given notice within
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days after the occurrence of the injury or disability for which compensation is sought. In Zacek, supra, 25 Pa. Commonwealth Ct. at 202, 359 A.2d at 844, Judge Mencer succinctly phrased the content of Section 311 in remanding for
findings concerning when Zacek 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.
As thereby summarized, Section 311 provides that the notice period does "not begin to run until" claimant has: (1) knowledge or constructive knowledge (2) of a disability (3) which exists, (4) which results from an occupational disease, and (5) which has a possible relationship to his employment. The plain language thus requires that all five elements conjoin, a reading of which is clear without resort to the doctrine of liberal interpretation of worker's compensation laws in favor of the employee. United States Steel Corp. v. Workmen's Compensation Appeal Board, 10 Pa. Commonwealth Ct. 247, 249, 309 A.2d 842, 843 (1973).
Pursuant to the remand, the referee here made a number of rather detailed findings, the eighth of which was that:
[W]hen the claimant, John Zacek, ceased his employment on December 31, 1973, he did not know, nor through the exercise of reasonable diligence, could he have known of the existence of his injury (in this case, an occupational disease), or of its possible relationship to his employment.
The sixth finding was that:
[T]he claimant, John Zacek, is totally disabled as a result of all his exposure to the hazard of coal dust from an occupational disease, coal workers pneumoconiosis, commencing June 24, 1974 and continuing to the present and into the future.
An additional part of the eighth finding was:
Even taking into consideration all that the claimant knew or thought he knew at the time he ceased his coal mine employment, he did not know that he was totally disabled from an occupational disease until the existence of the ...