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DANIEL TRUSKEY v. COMMONWEALTH PENNSYLVANIA (01/26/81)

decided: January 26, 1981.

DANIEL TRUSKEY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ATLAS POWDER COMPANY, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Daniel Truskey v. Atlas Powder Company, No. A-74304.

COUNSEL

Lester Krasno, for petitioner.

Charles M. Miller, Rubright, Domalakes, Troy & Miller, for respondent.

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

Author: Craig

[ 56 Pa. Commw. Page 316]

In this workmen's compensation appeal, the claimant*fn1 attacks the board's*fn2 reversal of the referee's conclusion that employer's*fn3 contest was unreasonable, and the board's deletion of the additional award of attorney's fees under Section 440 of The Pennsylvania Workmen's Compensation Act (Act).*fn4

The employer submits it acted reasonably in pursuing the defense that claimant did not properly notify it of the alleged injury within the 120 days required by Section 311 of the Act, as amended, 77 P.S. § 631.

Although the question of reasonable contest includes factual inquiries, it is ultimately a question of law, Murray v. Workmen's Compensation Appeal Board, 45 Pa. Commonwealth Ct. 3, 404 A.2d 765 (1979), and is therefore subject fully to review by the board and this court. Ball v. Workmen's Compensation Appeal Board, 19 Pa. Commonwealth Ct. 157, 340 A.2d 610 (1975).

We agree with the board that the referee's award was not justified by the record.

The board's opinion accurately recites that:

In his claim petition, [claimant] alleges that he injured his back while pushing what is called a 'cap box' on September 19, 1975. He nevertheless

[ 56 Pa. Commw. Page 317]

    continued working until May 3, 1976, and, again according to his petition, gave notice of his injury to one Larry Kline. . . . It would appear that he [Kline] is not only not the claimant's supervisor, but in fact is not a supervisor at all. ...


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