Appeal from the Order of the Workmen's Compensation Appeal Board in case of Ira V. Leasure v. Republic Steel Corp. and Commonwealth of Pennsylvania, No. A-73585.
Linton L. Moyer, of Thomson, Rhodes & Grigsby, for petitioner.
John M. Campfield, with him William J. Ober, of Scales & Shaw, and William C. O'Toole, Assistant Attorney General, for respondents.
Judges Wilkinson, Jr., Mencer and DiSalle, sitting as a panel of three. President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Craig, MacPhail and Williams, Jr. Judge Blatt did not participate. Opinion by Judge Williams, Jr. President Judge Crumlish dissents.
[ 54 Pa. Commw. Page 114]
This is an appeal by Republic Steel Corporation (Republic) from an order of the Workmen's Compensation Appeal Board affirming a referee's award of compensation to respondent Ira V. Leasure (claimant) for total disability due to coal miner's pneumoconiosis or "black lung."*fn1
The claimant was employed by various coal mining
[ 54 Pa. Commw. Page 115]
companies from 1926 to 1974. For Republic he worked as a shuttle car operator in coal mines from September, 1951, to January 31, 1974, when he retired.
In April, 1973, the claimant applied for federal "black lung" benefits, but that application was denied. In November, 1973, he sought reconsideration of that decision. Shortly after the claimant's retirement he applied again for federal "black lung" benefits, on February 7, 1974. The record of this case does not reveal what decision was made on that second federal application. On May 27, 1975, the claimant filed a claim petition under The Workmen's Compensation Act,*fn2 asserting that he had contracted pneumoconosis due to constant exposure to coal dust in his employment with Republic. Notice to Republic had been sent by certified mail on May 21, 1975.
Republic sought dismissal of the claimant's petition on the ground that he violated the notice requirements of Section 311 of the Act, 77 P.S. § 631.*fn3 The referee rejected the contention and found that the claimant first learned of his disability and its possible relation to his employment after receiving a medical report from a Dr. William Conn on February 17, 1975. Based on that finding the referee concluded that the claimant had complied with the notice requirements of Section 311.
Central to this case is that feature of Section 311 which requires an employee to notify his employer of his disability within 120 days of the time the employee knew, or should have known, of the existence of the disabling ...