Appeal from the Order of the Workmen's Compensation Appeal Board in case of John B. Nagle v. Rockwell International, No. A-77379.
Albert G. Feczko, Jr., for petitioner.
Amiel B. Caramanna, Jr., for respondent, John B. Nagle.
Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 63 Pa. Commw. Page 118]
In this workmen's compensation appeal, the employer*fn1 questions an order by the Workmen's Compensation
[ 63 Pa. Commw. Page 119]
Appeal Board affirming a referee's decision to award compensation to claimant, a laborer, for total disability.
Claimant had been a general maintenance employee, but faced with a layoff, he exercised his seniority rights and "bumped into" a laborer position, in which his primary duty was to clean cement floors with a heavy buffing machine. The claimant's testimony was that the machine's operation forced him to sway from side to side, and, while operating it on a date between March 20 and April 2, 1975, the machine hit some water causing an unusual sway and he felt a "twinge" in his left knee. The claimant continued to work until the latter date, when the pain was too great for him to continue work.
On April 5, 1975, claimant saw Dr. Dwight Kissell. Dr. Kissell testified for the employer, by deposition, that the claimant complained of muscle strain in the legs from being unable to handle the machine. The doctor said that the claimant did not mention any injury. Dr. Kissell gave the claimant a note suggesting a one-week vacation and then, upon return to work, a light duty assignment. However, the claimant did not return to work.
The employer raises two points on appeal. First, the employer contends that claimant did not give notice as required by Section 311 of The Pennsylvania Workmen's Compensation Act*fn2 mandating notice within 120 days after the occurrence of the injury. Workmen's Compensation Appeal Board v. Czepurnyj, 20 Pa. Commonwealth Ct. 305, 340 A.2d 915 (1975). Concomitantly, the employer's evidence questioned the accident occurrence.*fn3
[ 63 Pa. Commw. Page 120]
At the first hearing, the claimant testified that he had not told anyone at work about the accident.*fn4 At a later hearing, claimant testified that his negative statement concerning notice was limited to April 2, 1975. He further testified that on April 7 or 8, 1975, he took Dr. Kissell's note to the company nurse and told her that he had ...