Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Bruno F. Larusso v. E.J.T. Construction, Inc., No. A-82765.
James M. Jacquette, with him, Curtis Wright, Timoney, Knox, Hasson & Weand, for petitioner.
Charles S. Katz, Jr., with him, Thomas E. Sennett, Swartz, Campbell & Detweiler, for respondent, E.J.T. Construction, Inc.
Judges Craig and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.
[ 93 Pa. Commw. Page 482]
Bruno P. Larusso, Claimant, brings before this Court for the second time his claim for total disability benefits for a heart attack injury suffered on October 17, 1975. Now, as in the former appeal to this Court, E.J.T. Construction, Inc. v. Workmen's Compensation Appeal Board (Larusso), 47 Pa. Commonwealth Ct. 492,
[ 93 Pa. Commw. Page 483408]
A.2d 226 (1979), the sole issue is whether or not legally proper notice was given within the 120-day limitation period as provided in Section 311 of The Pennsylvania Workmen's Compensation Act,*fn1 77 P.S. § 631. When the case was before this Court previously, we remanded in a decision by Judge Blatt dated November 30, 1979 to provide an opportunity for the parties and the referee to address the specific issue as to when the Claimant first knew that his injury was work-related, thus to establish the time as of which the 120-day period for giving notice would begin to run. This, specifically, would address that portion of Section 311, 77 P.S. § 631, that states
Ruling that the Board had mistakenly found that notice was properly given under Section 311, the Board reversing the disallowance of the referee, we stated:
The second sentence of Section 311 of the Act clearly provides that, when the relationship of the injury to the employment is not known to the employee, the 120-day period does not begin to run until the employee either knows or should know of such a relationship. Here, however,
[ 93 Pa. Commw. Page 484]
the referee failed to make any finding whatever as to when the claimant knew or should have known of the causal relationship between his employment and his heart attack. And as the Board correctly pointed out in its opinion, there is no testimony of record concerning this crucial issue.
On the remand, the Claimant adduced the testimony of his attending physician, Henry B. Borska, M.D., apparently seeking to prove that the work-relatedness of his heart attack of October 17, 1975, was not known to him until informed of this by Dr. Borska on March 29, 1976. Dr. Borska testified that, because of Claimant's sensitivity and emotional ...