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

COMMONWEALTH COURT OF PENNSYLVANIA


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 on the ground of unsatisfactory work progress.

[ 96 Pa. Commw. Page 624]

The issue is whether, under section 311 of the Act,*fn3 the employer had knowledge of the occurrence of the alleged work-related injury within the required 120-day period. Only the reactive airways disease injury is involved.

The claimant contends that the referee capriciously disregarded evidence of reactive airways disease and failed to make specific findings of fact regarding that disease, and as a result, the case should be remanded for further findings of fact. In addition, the claimant contends that the employer had knowledge of the alleged work-related injury based upon conversations with Dr. Parkinson, as evidenced by employer's transfer of the claimant from photocopiers to typewriters on December 7, 1981.

The courts in this Commonwealth have long held that whether any notice of an injury has been given to an employer is an issue of fact which the referee determines, precluding the courts from disturbing such a finding on appeal. Katz v. Evening Bulletin, 485 Pa. 536, 403 A.2d 518 (1979), citing Wilkinson v. United Parcel of Pennsylvania, 158 Pa. Superior Ct. 22, 43 A.2d 408 (1945).

Although Mr. Rutellini, a Branch Technical Support Manager for the employer, testified that he was worried about the "toner thing" hurting the claimant when she returned to work, he also testified that he had no knowledge that the occurrence of her reactive airways disease was work-related.*fn4

[ 96 Pa. Commw. Page 625]

The referee, as the ultimate factfinder, may weigh the evidence and accept or reject the testimony of any witness in whole or in part. Further, the acceptance or rejection of any testimony does not constitute capricious disregard of competent evidence. Hoffman v. Workmen's Compensation Appeal Board, 87 Pa. Commonwealth Ct. 44, 485 A.2d 1235 (1985). Consequently, the referee did not capriciously disregard evidence in determining that the claimant's notice was not timely.

This court must reject the claimant's request that we remand for further findings on whether she had a compensable claim for reactive airways disease*fn5 because the employer's lack of timely notice on that issue precludes further consideration.

Accordingly, we affirm.

[ 96 Pa. Commw. Page 626]

Order

Now, April 29, 1986, the order of the Workmen's Compensation Appeal Board, No. A-85712, is affirmed.

Disposition

Affirmed.


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