Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Richard Van Patton v. Scott Paper Company, No. A-83391.
James H. Gorbey, Jr., for petitioner.
Charles S. Katz, Jr., Swartz, Campbell & Detweiler, for respondents.
Judges Williams, Jr., Doyle and Barry, sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 86 Pa. Commw. Page 539]
Richard Van Patton appeals from the decision of the Workmen's Compensation Appeal Board affirming the referee's denial of compensation.
On October 27, 1980, Van Patton filed a petition for compensation alleging that in May of 1979, he suffered a work-related reoccurrence of an injury which he sustained in January of 1971. He later amended his petition to allege an independent injury on May 7, 1979, resulting in disability from May 28, 1979 through July 7, 1981.
The compensation referee dismissed the petition on two grounds: (1) that Van Patton had failed to establish that his disability was job-related; and (2) that Van Patton had failed to give notice of his injury to the employer within 120 days as prescribed by Section 311 of The Pennsylvania Workmen's Compensation Act.*fn1 The Board subsequently affirmed the referee on the sole ground that Van Patton had not given the required notice of his injury; the Board did not address at all whether the referee erred in concluding that a work-related injury had not been established.
The referee made the following findings of fact with regard to the issue of notice:
Although claimant told Dr. Bosacco that it was his work activity of May, 1979 that caused
[ 86 Pa. Commw. Page 540]
his back problems beginning in that month, the doctor never recorded that history in his records; thus the opinion of Dr. Bosacco that there was a causal relationship between claimant's work activities and the pathology which he diagnosed was based on his recollection of what claimant related to him.
Claimant gave no notice of his injury of May 7, 1979 to Scott Paper Company and relied upon Dr. Bosacco to do so. Although there is no evidence to support this allegation, claimant alleges in his Petition that on September 28, 1979, Dr. Bosacco sent a medical statement to the medical department of Scott Paper Company. Even ...