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CYNTHIA MCCULLOUGH AND MICHAEL MCCULLOUGH v. WORKMEN'S COMPENSATION APPEAL BOARD (XEROX CORPORATION (04/29/86)

decided: April 29, 1986.

CYNTHIA MCCULLOUGH AND MICHAEL MCCULLOUGH, HER HUSBAND, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (XEROX CORPORATION, A CORPORATION), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Cynthia L. McCullough v. Xerox Corporation, No. A-85712.

COUNSEL

John T. Tierney, III, with him, Roberta G. Willenkin, Tarasi, Tighe, Tierney & Johnson, P.C., for petitioners.

Fred C. Trenor, Meyer, Darragh, Buckler, Bebenek & Eck, for respondent, Xerox Corporation.

Judges Craig and MacPhail, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 96 Pa. Commw. Page 622]

Cynthia McCullough appeals an order of the Workmen's Compensation Appeal Board affirming a referee's dismissal of the claimant's petition for compensation under section 108(n) of The Pennsylvania Workmen's Compensation Act.*fn1 The board's order is affirmed.

The referee found that the claimant worked as a technical representative for Xerox Corporation beginning

[ 96 Pa. Commw. Page 623]

August 27, 1979. Her duties included cleaning, repairing and maintaining photocopy machines. According to the words of the referee's finding, the claimant "missed" work from January 8, 1981 until December 6, 1981.

In March, 1981, the claimant's physician, Dr. Parkinson, had concluded that the claimant had sarcoidosis. The referee found credible the evidence which established that sarcoidosis was not work-related.*fn2 The claimant here does not pursue the claim on the sarcoidosis basis.

Subsequently, on September 21, 1981, Dr. Parkinson diagnosed the claimant as having reactive airways disease. The referee found that, on September 21, 1981, the claimant knew of the possible relationship between her employment and the occurrence of reactive airways disease.

The referee also found that, although Dr. Parkinson spoke to the employer on four or five occasions after his diagnosis of the claimant's alleged work-related injury on September 21, 1981, and before her return to work on December 7, 1981, those conversations did not constitute timely notice to the employer of the claimant's alleged work-related injury. Consequently, the referee determined that the employer's first notice of any alleged work-related injury was the filing of the petition on February 23, 1982, which was beyond the 120-day statutory period, measured from September 21, 1981.

When the claimant returned to work on December 7, 1981, she learned to repair and clean typewriters, but, on January 4, 1982, the employer terminated the claimant's employment ...


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