Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Enoch Bailey v. Pittsburgh Tube Company, No. A-86696.
Michael D. Sherman, Fried, Kane, Walters & Zuschlag, for petitioner.
Michael Relich, with him, Edward D. Klym, David R. Hartman and Arthur A. Asti, Trushel, Wood & Israel, for respondent, Pittsburgh Tube Company.
Judges Craig and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barbieri. Dissenting Opinion by Judge Barry.
[ 96 Pa. Commw. Page 600]
Enoch Bailey, Claimant, appeals here an order of the Workmen's Compensation Appeal Board denying him compensation benefits for a work-related injury suffered in the course of his employment with Pittsburgh Tube Company. The disallowance is based solely on the referee's determination, affirmed by The Workmen's Compensation Appeal Board (Board), that a timely notice was not given the employer within the meaning of provisions in Sections 311, 312 and 313 of the Pennsylvania Workmen's Compensation Act (Act).*fn1
Claimant's last day of work was apparently May 22, 1980, on which date the employer's nurse testified that Claimant reported with back pain and was provided authority to leave work because of this disability. She testified that she was not made aware by Claimant of any work-relation of his back complaint at that time. Claimant's immediate supervisor also testified that he was not immediately made aware that the injury was deemed to be work-related. However, the employer's Director of Personnel, Glen R. Wells, testified that after the Claimant had been to his physician, Dr. Charles V. Baltic, he returned on or about June 5th or 6th and reported to Mr. Wells that his disabling back condition was work-related. The testimony of Mr. Wells appears, in part, as follows:
[ 96 Pa. Commw. Page 601]
Q. Okay. Now in the course of your employment, are you familiar with a Mr. Enoch Bailey?
Q. And when was the first time, sir, that you became aware that he was claiming a work related injury regarding his lower back?
Q. And how did you become aware on that date, sir?
A. He came into any [sic] office and informed me that he was reporting off work due to a lower back pain.
Q. And did he indicate to you that day that he had hurt his back at work?