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TRAVELERS INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (BARRY L. LEVINE) (07/28/82)

decided: July 28, 1982.

THE TRAVELERS INSURANCE COMPANY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BARRY L. LEVINE), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Barry L. Levine v. Queen Ester's Inc., No. A-80013.

COUNSEL

John D. Newborg, for petitioner.

Joel Persky, Baskin and Sears, P.C., for respondent, Barry L. Levine.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail. Judge Doyle concurs in the result only.

Author: Macphail

[ 68 Pa. Commw. Page 24]

In this appeal from an order of the Workmen's Compensation Appeal Board (Board) which affirmed

[ 68 Pa. Commw. Page 25]

    the decision of the referee awarding workmen's compensation benefits to Barry L. Levine (Claimant), the critical facts are not in dispute.

Claimant, while president and general manager of Queen Ester's, Inc.*fn1 (Employer), suffered a work related injury on December 8, 1976. At that time, a valid policy of insurance under the provisions of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยงยง 1-1031, existed between Employer and Travelers Insurance Company (Travelers), appellant herein. The day following the accident, Claimant told one Toni Ann Wyner, whom the referee found to be the corporate secretary, about the injury. No claim form was sent to Travelers, however, until November 15, 1977. Travelers said that it did not receive that form until December, 1977. Employer ceased doing business after the Johnstown flood of 1977, but the corporation was never formally dissolved. While he was employed, Claimant took care of the Employer's insurance matters, including workmen's compensation insurance, which he said was arranged through a local insurance agency. Claimant explained the delay in filing a claim with Travelers on the basis that he was not certain whether or not the workmen's compensation insurance policy was in effect on the date of his accident because of conversations he had had with the local agent relative to the Employer's financial obligations to the agent.

The referee found that Claimant had sustained a compensable injury and that valid notice had been

[ 68 Pa. Commw. Page 26]

    given under Section 311 of the Act which provides in pertinent part:

Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his behalf, or some of the dependents or someone in their behalf, shall give notice thereof to the employer within twenty-one days after the injury, no compensation shall be due until such notice be given, and, unless such notice be given within one hundred and ...


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