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REPUBLIC STEEL CORPORATION v. COMMONWEALTH PENNSYLVANIA (04/24/80)

decided: April 24, 1980.

REPUBLIC STEEL CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, ANDREW L. WOJTASZEK AND COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Andrew L. Wojtaszek v. Republic Steel Corp., No. A-75532.

COUNSEL

Linton L. Moyer, of Thomson, Rhodes & Grigsby, for petitioner.

Kenneth J. Yablonski, for respondent.

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

Author: Craig

[ 51 Pa. Commw. Page 8]

Republic Steel Corporation (Republic) petitions for review of the decision of the Workmen's Compensation Appeal Board (board) which affirmed the referee's award of benefits for total disability due to coalworker's pneumoconiosis to Andrew L. Wojtaszek (claimant). We affirm the board.

Claimant worked underground in the Pennsylvania bituminous coal mines from 1925 until July, 1974, having been employed since 1953 by Republic. He left Republic's mines on July 20, 1974 and filed a claim petition on March 26, 1976 under Section 108 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 127.1, alleging that he became totally disabled on March 11, 1976, on which date he was informed by his physician of a diagnosis of total disability, due to coalworker's pneumoconiosis.

The referee found claimant totally disabled as alleged in the petition and also found that claimant sent

[ 51 Pa. Commw. Page 9]

    notice to Republic on March 18, 1976, "which was within seven days of his first knowledge of total disability from an occupational disease."

Republic's appeal contends only that the latter finding is inadequate to resolve the legal issue of claimant's compliance with the 120-day notice requirement of Section 311 of the Act, 77 P.S. § 631,*fn1 and therefore, that the board erred in not remanding the claim to the referee for a further finding, as to whether claimant earlier should have known of his disability and its relationship to his employment.

[ 51 Pa. Commw. Page 10]

In Zacek v. Republic Steel Corp., 25 Pa. Commonwealth Ct. 199, 359 A.2d 842 (1976), (Zacek I), cited by Republic, we remanded to the referee for findings concerning when the claimant knew or should have known of his disability due to an occupational disease, because "the referee failed to make any findings" as to when the claimant had either knowledge or constructive knowledge, and, despite the employer's consistent contention that notice was untimely, "the referee failed ...


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