Appeal from the Order of the Workmen's Compensation Appeal Board, in case of William Andring v. Keystone Coal Mining Corporation, No. A-85121.
David J. Tulowitzki, Pawlowski, Long, Creany & Tulowitzki, for petitioner.
George H. Thompson, Tillman & Thompson, for respondent, Keystone Coal Mining Corporation.
Judges MacPhail, Doyle and Colins, sitting as a panel of three. Opinion by Judge MacPhail.
[ 97 Pa. Commw. Page 173]
William Andring (Claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) affirming the decision of a referee which dismissed Claimant's petition for compensation under the occupational disease provisions of The Pennsylvania Workmen's Compensation Act (Act).*fn1 We reverse.
[ 97 Pa. Commw. Page 174]
The referee found that Claimant was last employed in the bituminous coal mining industry by Keystone Coal Mining Corporation (Keystone) from sometime in 1967 to October 23, 1980. The referee also found that Claimant is disabled, either totally or partially, due to coal worker's pneumoconiosis and that the Claimant first knew or should have known that he was disabled in December of 1980. The referee denied benefits because he found that the Claimant did not give notice of his injury to Keystone until November 11, 1981, which is not within 120 days as required by Section 311 of the Act.*fn2
The Claimant has the burden of showing that he is entitled to benefits. Tady v. Workmen's Compensation Appeal Board (Republic Steel Corp.), 86 Pa. Commonwealth Ct. 582, 485 A.2d 897 (1985). Where the party with the burden of proof has not prevailed before the referee, our scope of review is limited to determining whether the referee's findings are in capricious disregard of any competent evidence and are consistent with each other, and whether any errors of law were committed or constitutional rights violated. Id.
[ 97 Pa. Commw. Page 175]
Our review of the record reveals that both parties stipulated on September 8, 1982 before the referee that Keystone received a Notice of an Initial Finding of disability on a Federal Black Lung claim within a day or two after February 25, 1981. Claimant avers that this initial finding by the U.S. Department of Labor (Department), communicated to Keystone, supplied knowledge of Claimant's disability to Keystone within the 120 day limit.
The sole issue presented to us by the instant appeal is whether the referee capriciously disregarded competent evidence or committed an error of law when he concluded that Claimant is not entitled to benefits due to Claimant's failure to give notice to Keystone in accordance with the Act. Keystone argues that the Notice of an Initial Finding from the Department was not sufficient notice under the Act because the notice given to an employer in a Federal Black Lung proceeding is not identical to the notice required to be given to an employer when a state claim is filed -- namely, that a claimant has coal worker's pneumoconiosis and is disabled by the disease.
Under the pertinent federal regulations, the Department is to gather medical evidence after a Black Lung claim is filed, but before a hearing is held. 20 C.F.R. § 725.405 (1978). Then, "[b]ased upon the evidence developed, the deputy commissioner may make an ...