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E.J.T. CONSTRUCTION v. COMMONWEALTH PENNSYLVANIA (11/30/79)

decided: November 30, 1979.

E.J.T. CONSTRUCTION, INC. AND ZURICH INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND BRUNO LARUSSO, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Bruno P. Larusso v. E.J.T. Construction, Inc., No. A-74988.

COUNSEL

Charles S. Katz, Jr., with him Swartz, Campbell & Detweiler, for petitioners.

James M. Jacquette, with him Timoney, Knox, Hasson & Weand, for respondents.

Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 47 Pa. Commw. Page 493]

E.J.T. Construction, Inc. (employer) appeals from a decision of the Workmen's Compensation Appeal Board (Board) which reversed a referee's determination and granted benefits to the claimant, Bruno Larusso.

The claimant suffered a heart attack on the evening of Friday, October 17, 1975 while at home. On the evening of Sunday, October 19, 1975, his daughter

[ 47 Pa. Commw. Page 494]

    telephoned a representative of the employer to inform him that her father was hospitalized and would therefore not be at work the next day. It was not until May of 1976, however, that the claimant filed a petition for workmen's compensation benefits pursuant to The Pennsylvania Workmen's Compensation Act.*fn1 The referee found after a hearing that the claimant had suffered an injury in the course of his employment which rendered him totally disabled, but denied the petition on the basis that the claimant had failed to give timely notice of his injury to the employer within the 120-day limitation period imposed by Section 311 of the Act, 77 P.S. ยง 631.

On appeal, the Board reversed the decision of the referee after concluding that the daughter's phone call of October 19, 1975, was sufficient notice under the Act. That Board found that

Since the employer was already aware of a prior heart attack which occurred during the course of employment; a workmen's compensation claim for same; a light duty restriction and heavy work despite it, it had sufficient information to make a proper investigation when it became aware of a recurring heart attack from which the employee [claimant] never recovered.

This appeal followed.

Section 311 of the Act ...


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