Appeal from the Order of the Workmen's Compensation Appeal Board in case of Andrew S. Pavlik v. Allegheny Ludlum Ind., Inc., No. A-84666.
Raymond F. Keisling, Will & Keisling, for petitioner.
Lawrence R. Chaban, Yablonski, King, Costello & Leckie, for respondent, Andrew S. Pavlik.
Judges MacPhail and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.
[ 89 Pa. Commw. Page 122]
Allegheny Ludlum Steel Corporation (Employer) appeals from a decision of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's award of compensation benefits to Andrew S. Pavlik (Claimant).
Claimant worked as a welder for Employer from 1942 until May 10, 1975. On December 21, 1976, Claimant was examined by Dr. Daniel Fine who diagnosed Claimant as totally disabled as a result of occupationally induced pneumoconiosis. Dr. Fine mailed his report, which contained his diagnosis, to Claimant's counsel on or about April 27, 1977. A claim petition was filed on June 20, 1977, alleging that Claimant's disabling disease was silicosis. Written notice of the claim was given to Employer on June 20, 1977.
The principal issue in the instant case is whether Claimant gave timely notice of his occupational disease to Employer pursuant to Section 311 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 631.*fn1
[ 89 Pa. Commw. Page 123]
Our scope of review in a workmen's compensation case where, as here, the party with the burden of proof prevailed before the referee and the Board took no additional evidence is to determine whether an error of law was committed or necessary findings of fact were unsupported by substantial evidence. Latrobe Steel Co. v. Workmen's Compensation Appeal Board (Goodman), 79 Pa. Commonwealth Ct. 203, 468 A.2d 1178 (1983).*fn2
The Employer argues here that it did not receive timely notice of Claimant's occupational disease. Whether or not an employer received notice of the injury or had actual knowledge of the injury is a question of fact for the referee. Miller v. Workmen's Compensation Appeal Board (Atlas Powder Co.), 78 Pa. Commonwealth Ct. 22, 466 A.2d 787 (1983). This Court has held that for purposes of Section 311, computing the 120 day time limit for giving notice of an occupational disease runs from the date that a claimant 1) is disabled and 2) knows or should know through the exercise of reasonable diligence of the possible relationship between the disability and his employment. Arcadia Coal Co. v. Workmen's Compensation Appeal Board (Kubalic), 79 Pa. Commonwealth Ct. 148, 468 A.2d 906 (1983). The referee is
[ 89 Pa. Commw. Page 124]
required to make a finding not only of the date that Claimant knew of the disability but also when the Claimant should have known by exercise of reasonable diligence of the existence of disability and its relationship to his employment. City of Philadelphia v. Workmen's ...