No. 80-1-74, Appeal from the Opinion of the Workmen's Compensation Appeal Board at No. A74143 and the decision of the Commonwealth Court of Pennsylvania at No. 1538 C.D. 1978.
Benjamin L. Costello, Pittsburgh, Kenneth J. Yablonski, Washington, for appellant.
Scott E. Becker, Linton L. Moyer, Thomson, Rhodes & Grigsby, William Jones, Pittsburgh, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.
This is an appeal from an order of the Commonwealth Court,*fn1 which reversed a decision of the Workmen's Compensation Appeal Board (hereinafter Board). The Board had affirmed a referee's decision awarding benefits to the appellant, Alex Shinsky, on the basis that he had been totally disabled by coal miner's pneumoconiosis.
Appellant worked as a coal miner for more than twenty-five years and was employed by the appellee, Republic Steel Corporation (hereinafter Republic), from 1971 until January 7, 1975, when respiratory difficulties precipitated his retirement. Appellant Shinsky notified Republic of disability caused by occupational disease on December 1, 1975, and filed his claim petition on December 11, 1975.
Republic raised before the Workmen's Compensation referee the issue of whether notice of such occupational disease was timely given, in view of the fact that Shinsky received medical treatment, in connection with a breathing problem, from Dr. A. G. Saloom from 1971 until mid 1975. Republic contends that Shinsky knew he suffered from pneumoconiosis at the latest in mid 1975, alleging that he had been so informed by Dr. Saloom. This was more than 120 days before notice was given to Republic. Hence, it was argued before the Workmen's Compensation referee that there had been a failure to comply with the 120 day notice requirement of Section 311 of the Pennsylvania Workmen's Compensation Act, which provides:
Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his behalf, or some of the dependents or someone in their behalf, shall give notice thereof to the employer within twenty-one days after the injury, no compensation shall be due until such notice is given, and, unless such notice be given within one hundred and twenty days after the occurrence of the injury, no compensation shall be allowed. However, in cases of injury resulting from ionizing radiation or any other cause in which the nature of the injury or its relationship to the employment is not known to the employe, the time for giving notice shall not begin to run until the employe knows, or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to his employment. The term "injury" in this section means, in cases of occupational disease, disability resulting from occupational disease.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 631 (1980 supp.). The referee resolved the factual issue of notice as follows:
"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 workers 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 workers pneumoconiosis was when he had been examined by another independent physician, Dr. Thomas Connely, on October 31, 1975, and had been told the results of said examination, '. . . he is totally and permanently disabled from coal workers pneumoconiosis as a result of his cumulative exposure to coal ...