Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Bernard J. Yotko v. Bethlehem Mines Corp., No. A-75896.
Barbara L. Hollenbach, with her Robert H. Holland, Holland, Taylor and Sorrentino, for petitioner.
No appearance for respondent.
Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Mencer did not participate in the decision in this case.
[ 66 Pa. Commw. Page 405]
Bethlehem Mines Corporation-Grace Mines (Employer) has appealed*fn1 from a determination of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of total disability
[ 66 Pa. Commw. Page 406]
benefits to Bernard J. Yotko (Claimant). The referee awarded benefits for disability resulting from silicosis which arose out of his employment with Employer, as provided by Section 108(k) of the Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 27.1(k).*fn2
In cases such as this, where the party with the burden of proof has prevailed before the referee and the Board has taken no additional evidence, our scope of review is limited to determining whether any constitutional rights were violated, an error of law was committed or a necessary finding of fact was unsupported by substantial evidence. United States Steel Corp. v. Workmen's Compensation Appeal Board, 59 Pa. Commonwealth Ct. 434, 430 A.2d 349 (1981). Questions of credibility and weight to be accorded the evidence are for the referee to determine, and in making such determinations the referee may choose to accept or reject, in whole or in part, the testimony of any witness. Novak v. Workmen's Compensation Appeal Board, 59 Pa. Commonwealth Ct. 434, 430 A.2d 703 (1981).
The Employer has raised four issues on this appeal. The first issue concerns whether Claimant gave timely notice to the Employer of his disability. Section 311 of the Act, 77 P.S. § 631, provides that notice of disability from an occupational disease shall be given to the employer within 120 days from the time "the employee knows, or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to his employment."
[ 66 Pa. Commw. Page 407]
The referee in this case found that Claimant became permanently and totally disabled from his disease on November 28, 1977, the date the claim petition was initially filed, and that Employer received notice as of that date. Employer does not contest the date notice was received; rather, it contends that the testimony presented shows that Claimant has been disabled since his last day of work on July 1, 1976 and that Claimant knew, or should have known, at that time of his disability and its relation to his employment.
Employer is quite correct that there is certain testimony by Claimant and his treating physician, Dr. Mika, that Claimant was disabled as early as July, 1976. Dr. Mika also testified, however, that "It was [his] impression on November 28, 1977, [that Claimant] was totally disabled. . ." and that it was not until November 28, 1977 that he informed Claimant that he should file for occupational disease benefits. Dr. Mika said that he had been treating Claimant for respiratory insufficiency since 1976 and that he had the benefit of Claimant's pulmonary function test for almost a year before he declared Claimant to be totally disabled. He explained, however, this was because Claimant was "very heroic" in trying to go back to work.*fn3 Claimant testified that Employer's doctor did not tell him in 1976 that he was disabled as contended by Employer, only that he could not go to work in November of 1976 and that he was given the same ...