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DAVID ZIEGLER v. WORKMEN'S COMPENSATION APPEAL BOARD (OXFORD MILLS) (10/21/86)

decided: October 21, 1986.

DAVID ZIEGLER, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (OXFORD MILLS), RESPONDENT



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of David Ziegler v. Oxford Mills, No. A-89300.

COUNSEL

Timothy P. Ruth, Stock and Leader, for petitioner.

Douglas B. Marcello, Mancke, Lightman and Wagner, for respondents, Oxford Mills and Home Insurance Company.

Judges Doyle and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 101 Pa. Commw. Page 393]

This appeal results from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision denying benefits to the claimant, David Ziegler. The employer, Oxford Mills, is the respondent in the present case.

As found by the referee, claimant alleged an injury to his back and neck at work when he attempted to close with a jerking motion a locked lever on a winding spool of fiberglass yarn coating machine. This movement, claimant has maintained, caused "an immediate sharp shocklike pain from his neck down his right arm." As also found by the referee, "claimant reported the incident to his foreman, and his foreman advised claimant to report back to him and complete an accident report if the pain persisted." Finding of Fact # 4.

Claimant, however, completed his shift and then went on a vacation. About two months later claimant visited a physician "since the pain in his neck had increased," and was instructed by the physician not to return to work. That instruction was given pursuant to the diagnosis of "cervical sprain and nerve root irritation with early degenerative disc disease at C5-6 and C6-7 level of his back." Thereafter, on January 30, 1984, claimant filed a petition for benefits and medical expenses. This was some five months after the incident, and the referee concluded that the claim petition constituted the first notice of injury. Because 120 days had

[ 101 Pa. Commw. Page 394]

    elapsed, the referee dismissed the claim for failure to comply with the mandatory notice requirements of sections 311-313 of the Workmen's Compensation Act (Act).*fn1

The Board affirmed, concluding, as had the referee, that there had not been proper notice. Claimant then initiated the present petition for review.

Our scope of review in the present matter is limited to determining whether there has been a capricious disregard of competent evidence, whether an error of law was committed, or whether constitutional rights have been violated. Warr v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 370, 390 A.2d 899 (1978). Claimant has successfully preserved and advances here the argument that the referee erred in concluding that notice was not given. We agree with that assertion, and hence reverse and remand for consideration and factual findings with respect to the substantive aspects of the claim.

The referee's reasoning behind his legal conclusion that no notice was effectively communicated is included in his second conclusion of law, in which he declared that "[c]laimant did not advise his foreman on August 19, 1983, the date of the alleged incident, as instructed, or on ...


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