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ROCHESTER & PITTSBURGH COAL CO. AND OLD REPUBLIC COMPANIES v. WORKMEN'S COMPENSATION APPEAL BOARD (LEVITZ) (01/24/84)

decided: January 24, 1984.

ROCHESTER & PITTSBURGH COAL CO. AND OLD REPUBLIC COMPANIES, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (LEVITZ), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John Levitz v. Rochester & Pittsburgh Coal Co., No. A-81499.

COUNSEL

Paul E. Sutter, Hirsch, Weise & Tillman, for petitioners.

David J. Tulowitzki, Pawlowski, Long, Creany & Tulowitzki, for respondents.

Judges Williams, Jr., Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 80 Pa. Commw. Page 20]

Rochester & Pittsburgh Coal Co. (Employer) appeals from the order of the Workmen's Compensation Appeal Board (Board) dated October 14, 1982, which affirmed the referee's award of compensation for partial disability to John Levitz (Claimant) and dismissed the Employer's appeal.

The Employer alleges here, as it did before the Board, that the referee's finding of fact that Claimant first knew of his disability on August 20, 1980, is not supported by substantial evidence and that the referee erred as a matter of law in failing to make a specific finding as to when Claimant, by the exercise of reasonable diligence, should have known of the existence of his disability and its possible relationship to his employment. See Section 311 of The Pennsylvania Workmen's Compensation Act (Act),*fn1 which sets forth the time limitations for giving notice to an employer regarding a work-related injury or an occupational disease.

[ 80 Pa. Commw. Page 21]

The record shows that Claimant was employed in the coal mining industry for thirty-one years. The referee found from the medical testimony and evidence that Claimant was partially disabled from coal workers' pneumoconiosis, an occupationally acquired lung disease. Claimant testified that he had not worked since 1976, and that he had received an award of federal black lung benefits on June 18, 1980. He further testified on direct examination as follows:

Q: Did you then get a letter from the United Mine Workers dated August 20th, 1980 advising you that Doctor Klemens found you to be disabled?

A: Yes.

Q: And, were you advised to come up to the Union Office and file a state claim for ...


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