Appeal from the Order of the Workmen's Compensation Appeal Board in case of Eddie Lee West, Deceased; Louise West, Widow v. Jones & Laughlin Steel Corporation, No. A-78964.
Ronald Ganassi, Will & Keisling, for petitioner.
William R. Caroselli, with him Edwin H. Beachler, McArdle, Caroselli, Spagnolli & Beachler, for respondent, Eddie Lee West, deceased.
President Judge Crumlish, Jr. and Judges Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.
[ 62 Pa. Commw. Page 425]
Jones & Laughlin Steel Corporation (J & L), the employer has appealed the Workmen's Compensation Appeal Board's affirmance of a referee's decision
[ 62 Pa. Commw. Page 426]
awarding compensation to a widow. The referee found that the decedent, Eddie Lee West, employed by J & L from May 1957 to September 1974, died as a result of an occupational disease*fn1 caused by exposure to hazardous substances during the course of that employment. The referee awarded compensation to respondent, the widow, beginning February 27, 1975, decedent's date of death, with interest on deferred payments of compensation pursuant to Section 406.1 of The Pennsylvania Workers Compensation Act (Act).*fn2
The respondent filed her fatal claim petition on February 16, 1978, alleging that notice of death had been communicated to the employer by decedent's undertaker on February 28, 1975. J & L, denying receipt of such notice, contends that there was no proof of notice and notes that the referee made no finding as to the date of notice. Hence, J & L asserts that the first notice of claim was February 16, 1978, the date the respondent filed her fatal claim petition, more than two years and eleven months after death.
This appeal presents three issues: Is respondent's claim barred under Section 311 of the Act?*fn3 If the claim is not barred, is the respondent entitled to benefits for the period after decedent's death which preceded any notice to petitioner-employer? If respondent can recover benefits calculated from the date of death, is she also entitled to interest on benefits accrued before notice to petitioner-employer?
J & L contends that the Section 311 notice requirement applies to death claims as well as to injury claims
[ 62 Pa. Commw. Page 427]
for lifetime benefits.*fn4 If the 120 day limitation applies to death claims, and if J & L did not in fact receive notice until the claim petition was filed, the respondent's claim would be barred.
We decided the question of whether Section 311 notice requirements are controlling in death claims in Duquesne Light Company v. Gurick, 46 Pa. Commonwealth Ct. 150, 405 A.2d 1358 (1979), a case which also ...