Appeal from the Order of the Workmen's Compensation Appeal Board in case of Alex Shinsky v. Republic Steel Corporation and Commonwealth of Pennsylvania, No. A-74143.
Ralph A. Davies, with him Edward A. McFarland, and Thomson, Rhodes & Grigsby, for petitioner.
Margaret D. Blough, for respondent.
Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 48 Pa. Commw. Page 132]
Alex Shinsky, totally disabled by coal worker's pneumoconiosis, was awarded benefits by a referee whose decision was affirmed by the Workmen's Compensation Appeal Board. His employer, Republic Steel Corporation (Republic), argues that he failed to comply with the 120-day notice requirement of Section 311 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 631.*fn1 We reverse.
The notice requirements of Section 311 are analyzed in Republic Steel Corp. v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 480, 407 A.2d 117 (1979).
Shinsky worked as a coal miner for more than 25 years and was so employed by Republic from 1971 until January 7, 1975, when he retired because of breathing difficulties. He notified Republic of his disability because of an occupational disease on December 1, 1975,
[ 48 Pa. Commw. Page 133]
and filed his workmen's compensation claim petition on December 11, 1975.
The referee resolved the factual issue of timely notice as follows:
FOURTH: Although claimant had filed on three separate occasions for Federal Black Lung Benefits and had been doctoring with Dr. A. G. Saloom from 1971 and further that Dr. Saloom feels that he must have told the claimant on July 3, 1975, that he was totally disabled from coal worker's pneumoconiosis, this Referee is of the opinion that the first time that the claimant was fully aware of the seriousness of his condition and that he was totally disabled from coal worker's pneumoconiosis was when he had been examined by another independent physician, Dr. Thomas Connelly, on October 31, 1975, and had been told the results of said examination, '. . . he is totally and permanently disabled from coal worker's pneumoconiosis as a result of his cumulative exposure to coal dust while employed as an active miner' by letter dated November 11, 1975, to his union attorneys; and that upon learning the results of his examination, he notified his last employer through his attorney by certified mail No. 917210 dated December 1, 1975, and received on December 3, 1975, which was within 30 days of this awareness.
Republic contends that the Board's error consisted of the referee capriciously disregarding recorded testimony of Shinsky and his physician on the notice issue. Our scope of review is limited and we are constrained to affirm essential findings unless they are not supported by substantial evidence. Republic Steel Corp., supra. ...