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DOLORES ANN MILLER v. WORKMEN'S COMPENSATION APPEAL BOARD (ATLAS POWDER COMPANY) (10/21/83)

decided: October 21, 1983.

DOLORES ANN MILLER, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ATLAS POWDER COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Dolores Ann Miller v. Atlas Powder Company, No. A-82800.

COUNSEL

Robert P. Boychak, Law Office of Steven Kachmar, for petitioner.

Charles M. Miller, Rubright, Domalakes, Troy & Miller, for respondent, Atlas Powder Company.

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

Author: Blatt

[ 78 Pa. Commw. Page 23]

Dolores Ann Miller (claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's dismissal of her claim petition.

The claimant was employed by the Atlas Powder Company (employer) for approximately twenty-three (23) years until she resigned on September 13, 1974. On March 11, 1976, she filed a claim petition seeking

[ 78 Pa. Commw. Page 24]

    total disability benefits as a result of a back injury allegedly sustained on the date of her resignation. The referee found that she had failed to communicate her alleged injury to an agent of the employer within the statutory time limit mandated by Section 311 of The Pennsylvania Workmen's Compensation Act.*fn1 Concluding that the testimony of Dr. Richard K. White, the medical witness for the employer, was more credible than the testimony of the claimant's medical witness, the referee also found that she was not totally disabled. She appealed to the Board which affirmed the referee without hearing additional evidence.

Our scope of review in a workmen's compensation case where the party with the burden of proof*fn2 did not prevail below and where the Board took no additional evidence is to determine whether or not the referee as fact finder capriciously disregarded competent evidence, leaving to the referee questions of credibility and the resolution of conflicts in testimony. Cooper v. Workmen's Compensation Appeal Board, 49 Pa. Commonwealth Ct. 488, 411 A.2d 859 (1980).

The claimant argues here that the record does not contain substantial evidence in support of the referee's

[ 78 Pa. Commw. Page 25]

    conclusion that timely notice was not received by the employer. Whether or not the employer received notice of the injury or had actual knowledge of the injury pursuant to Section 311 of the Act, 77 P.S. § 631 is, of course, a question of fact for the referee. Travelers Insurance Co. v. Workmen's Compensation Appeal Board (Levine), 68 Pa. Commonwealth Ct. 24, 447 A.2d 1116 (1982). And this section mandates that, if the employer has neither actual knowledge nor notice of an injury within one hundred and twenty days of its occurrence, compensation must be barred. Canterna v. United States Steel Corp., 12 Pa. Commonwealth Ct. 579, 317 A.2d 355 (1974). Moreover, it has been held that ...


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