Reynolds v. Workmen's Compensation Appeal Board , 131 Pa. Commw. 161 ( 1990 )

BARBIERI, Senior Judge.

John J. Reynolds (Claimant) petitions for our review of the decision of the Workmen’s Compensation Appeal Board (Board) which dismissed Claimant’s claim petition because Claimant failed to give his employer timely notice of his work-related injury as required under Section 311 of The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 631.

Claimant works as a maintenance repair splicer-splicing technician for the Bell Telephone Company (Employer). On July 15, 1987, Claimant sustained a burn on his neck while making repairs on a telephone line for Employer. Claimant did not report his injury to Employer,¹ seek medical treatment for the burn, or take any time off from work because of his injury.

On December 2, 1987, Claimant filed a claim petition, alleging disfigurement pursuant to Section 306(c)(22) of the Act, 77 P.S. § 513(22).² Specifically, Claimant alleged that the burn he suffered on July 15, 1987 left a serious and permanent scar on his neck causing him to be permanently disfigured.

At a hearing on the matter, the referee observed Claimant’s facial scar and found the scar to be of such a serious and permanent nature as to result in an unsightly appearance. Even so, the referee dismissed Claimant’s claim petition because the referee found that Employer had no knowledge or notice of Claimant’s injury until December 15, 1987, the date the claim petition was served; and therefore, the referee concluded that Claimant had failed to meet his burden of proving that Employer either had knowledge of his work-related injury, or that Claimant gave such notice within the 120 day period required under Section 311 of the Act. Upon further appeal, the Board affirmed the referee’s decision and this petition for review followed.³

The sole issue for review by this Court is whether Claimant provided timely notice of his work-related injury to Employer in accordance with Section 311 of the Act. Section 311 requires notice to be given to the employer within 120 days of the occurrence of the injury in order for compensation to be allowed. Section 311 further pertinently provides that:

[I]n cases of injury ... in which the nature of the injury or its relationship to the employment is not known to the employe, the time for giving notice shall not begin to run until the employe knows, or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to his employment.

This Court recently held in Cyclops Corp. v. Workmen’s Compensation Appeal Board (Sray, Jr.), 116 Pa.Commonwealth Ct. 421, 541 A.2d 851 (1988), that under Section 306(c)(8) of the Act, a claimant is not charged with notice of his injury for Section 311 purposes until the claimant knows or should have known that the loss is significant enough to be compensable and that the loss was caused by his employment. Claimant argues that this holding should be extended to Section 306(c)(22) as well. Specifically, Claimant contends that to deny an extension of the Cyclops Corp. rule to other specific losses within the same subsection would, in effect, require a claimant, like Mr. Reynolds, to have the foresight as to permanency of disfigurement and possible compensability that is not imposed in practice.⁴

In Cyclops Corp., the claimant suffered permanent hearing loss from the cumulative exposure to a heavy noise level at work. Despite the fact that the hearing loss occurred over a long period of time and the claimant knew that his hearing was diminishing, this Court determined that the claimant only discovered he had a significant, work-related hearing loss after he was told so by his physician. Because he notified his employer within 120 days after he was medically informed of his permanent hearing loss, we found that notice was timely given by the claimant.

Similarly, in the present case, Claimant knew that he had suffered a work-related injury, a burn to his neck, on July 15, 1987. However, Claimant may not have known the significance of his injury, whether it was permanent or not, until a later date.⁵ Therefore, we remand this case for the taking of additional testimony regarding the time when Claimant knew or should have known the scar caused by his burn was compensable, including when it was permanent. It is from this date that a determination of whether Claimant filed his claim petition in a timely manner can be made.

Accordingly, the order of the Board is vacated and remanded for further proceedings in accordance with the foregoing opinion.

ORDER

AND NOW, this 6th day of February, 1990 the Order of the Workmen’s Compensation Appeal Board is vacated and the case is remanded for further proceedings in accordance with the foregoing opinion.

1 . Although there was some discussion in the record as to whether Claimant told his supervisor of his injury, the referee accepted the testimony of Employer’s representatives over the testimony of the Claimant and found that Employer had no knowledge or notice of Claimant’s injury until December 15, 1987, the date the claim petition was served. Because a credibility determination is within the province of the referee when it is supported by competent evidence, we will not disturb this finding on appeal. Universal Cyclops v. Workmen’s Compensation Appeal Board, 22 Pa.Common wealth Ct. 92, 348 A.2d 158 (1975).

2 . Section 306(c)(22) provides that:

For all disability resulting from permanent injuries of the following classes, the compensation shall be exclusively as follows:

(22) For serious and permanent disfigurement of the head, neck or face, of such a character as to produce an unsightly appearance, and such as is not usually incident to the employment, sixty-six and two-thirds per centum of wages not to exceed two hundred seventy-five weeks.

3 . Our scope of review is limited to determining whether the necessary findings were supported by substantial evidence, an error of law was committed, or constitutional rights were violated. Russell v. Workmen’s Compensation Appeal Board (Volkswagen of America), 121 Pa. Commonwealth Ct. 436, 550 A.2d 1364 (1988).

4 . Brief of Petitioner, p. 9.

5 . We note that Claimant might also not have known that his injury was compensable under the Act until a later date.