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JAMES FUSARELLI v. COMMONWEALTH PENNSYLVANIA (09/10/81)

decided: September 10, 1981.

JAMES FUSARELLI, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, VALLEY CAMP COAL COMPANY ET AL., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of James Fusarelli v. Valley Camp Coal Company and Commonwealth of Pennsylvania, No. A-75952.

COUNSEL

Lawrence R. Chosben, with him Margaret D. Blough, Yablonski, King, Costello & Leckie, for petitioner.

Paul E. Sutter, with him George H. Thompson, Hirsch, Weise & Tillman, for respondents.

President Judge Crumlish and Judges Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 61 Pa. Commw. Page 540]

The petitioner, James Fusarelli, appeals a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's denial of benefits

[ 61 Pa. Commw. Page 541]

    because the petitioner did not give timely notice of his disability to his employer, the Valley Camp Coal Company, as required by Section 311 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 631.

The petitioner was employed in underground coal mines for over 40 years and he worked for the employer here concerned from sometime in 1970 until June 25, 1976 when he found it necessary to resign because of severe shortness of breath. He notified his employer on April 28, 1977 that he was disabled and the next day he filed a claim petition alleging that he became totally disabled as of February 7, 1977 due to coal worker's pneumoconiosis contracted in the course of his employment under Section 108(q) of the Act, 77 P.S. § 27.1(q).*fn1 After numerous hearings at which conflicting medical evidence was presented, the referee found that the petitioner was indeed totally disabled due to an occupational disease but that the effective date of such disability was June 26, 1976, at which time he knew or, through the exercise of reasonable diligence, should have known that his disability was caused by an occupational disease contracted during his employment. Inasmuch as he had not given notice to his employer until April 28, 1977, which was not within 120 days of becoming aware of his disability as required by Section 311 of the Act, 77 P.S. § 631, his claim petition was denied. On appeal to the Board, the referee's decision was upheld and the instant petition for review followed.

The petitioner in a case of this kind has the burden of proving all of the elements which would entitle

[ 61 Pa. Commw. Page 542]

    him to benefits and, where he has not prevailed below, our scope of review is limited to determining whether or not the findings of fact are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. Senecal v. Workmen's Compensation Appeal Board, 57 Pa. Commonwealth Ct. 180, 425 A.2d 1200 (1981). The petitioner argues that the referee capriciously disregarded his testimony and that of his medical witness to the effect that he became totally disabled on February 7, 1977 and that he was not aware of his disability until that date which would have been well within the 120-day notice period.

Under Section 311 of the Act the notice period does not begin to run until the petitioner has: "(1) knowledge or constructive knowledge (2) of a disability (3) which exists, (4) which results from an occupational disease, and (5) which has a possible relationship to his employment." Republic Steel Corp. v. Workmen's Compensation Appeal Board, 47 Pa. Commonwealth Ct. 74, 77, 407 A.2d 117, 118 (1979). In the hearing before the referee held on June 16, 1977, the petitioner testified that "a little over a year ago" he had been examined by his family physician, Dr. McCarrell, who informed him that he had pneumoconiosis and that he should "get out of the mines," but that he nevertheless returned to work until June 25, 1976, when his condition forced him to retire. A medical report from Dr. McCarrell was introduced, ...


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