Bailey v. Workmen's Compensation Appeal Board

Opinion by

Judge Barbieri,

Enoch Bailey, Claimant, appeals here an order of the Workmens Compensation Appeal Board denying him compensation benefits for a work-related injury suffered in the course of his employment with Pittsburgh Tube Company. The disallowance is based solely on the referees determination, affirmed by The Workmens Compensation Appeal Board (Board), that a timely notice was not given the employer within the meaning of provisions in Sections 311, 312 and 313 of the Pennsylvania Workmens Compensation Act (Act).¹

Claimants last day of work was apparently May 22, 1980, on which date the employers nurse testified that Claimant reported with back pain and was provided authority to leave work because of this disability. She testified that she was not made aware by Claimant of any work-relation of his back complaint at that time. Claimants immediate supervisor also testified that he was not immediately made aware that the injury was deemed to be work-related. However, the employers Director of Personnel, Glen R. Wells, testified that after the Claimant had been to his physician, Dr. Charles V. Baltic, he returned on or about June 5th or 6th and reported to Mr. Wells that his disabling back condition was work-related. The testimony of Mr. Wells appears, in part, as follows:

Q. Okay. Now in the course of your employment, are you familiar with a Mr. Enoch Bailey?

A. Yes, I am.

Q. And when was the first time, sir, that you became aware that he was claiming a work related injury regarding his lower back?

A. June 5.

Q. Of what year?

A. 1980.

Q. And how did you become aware on that date, sir?

A. He came into any [sic] office and informed me that he was reporting off work due to a lower back pain.

Q. And did he indicate to you that day that he had hurt his back at work?

A. No.

REFEREE LAUGHLIN: No?

MR. WELLS: No.

BY MR. ASTI:

Q. Now I’m talking about June 5, 1980?

A. He said he just had a lower back pain.

Q. Okay?

A. It occurred on the 22nd.

Q. Okay. Now when —

REFEREE LAUGHLIN: His initial question was when did you first become aware that the Claimant was alleging that he had the injury.

MR. WELLS: All right, sir. That was the first day that I seen [sic] him. He came in and said he had hurt his back and I asked him was it job related, and he said, no.

REFEREE LAUGHLIN: He said, no?

BY MR. ASTI:

Q. Okay, Sir, when was the first time that you become [sic] aware that he was claiming this injury was work related, if you can tell me?

A. It was some time after that, because the man was on lay-off status.

Q. Okay.

REFEREE LAUGHLIN: When is some time after that? You ve got to give me some kind of a date, because its important.

MR. WELLS: 1980 BY MR. ASTI:

Q. So it would have been the next day?

REFEREE LAUGHLIN: June 6, 1980, then you were aware that he was alleging a work related injury?

MR. WELLS: Yes.

As the referee notes in his finding of fact No. 14 some subsequent testimony by Mr. Wells, apparently not consistent with that quoted above, created what the referee termed an “ambiguity.”² The referee also refers to the feet that the Claimant testified at one point that he had reported to a male nurse. The referee indicated that this challenged the credibility of Claimant since the nurse called by the employer who had seen Claimant on May 22, 1980, was female. It would appear, however, that rather than militate against the credibility of the Claimant, the failure of the employer to produce the male nurse as a witness creates an inference favorable to the Claimant.³ Holshue v. Workmen's Compensation Appeal Board (Robideau Exp.), 84 Pa. Commonwealth Ct. 253, 479 A.2d 42, (1984); Mahoney v. F.M. Roofing Co., 135 Pa. Superior Ct. 498, 5 A.2d 812 (1939).

Our anaylsis of the testimony indicates that the referee was simply deciding that notice was not given on the day the Claimant last worked and admittedly left his employment with a back complaint. We believe that this misconceives the fact-finding responsibilities in this case, since the proof of notice, after advice of the physician, Dr. Baltic, is clearly related to the date of or about June 6, 1980, rather than May 22, 1980, as the referee and Board have stressed.⁴

We note that under the Notice sections of the Act, knowledge rather than formal notice is required for compliance. Blass v. Workmen's Compensation Appeal Board, 77 Pa. Commonwealth Ct. 337, 465 A.2d 1094 (1983); Blackshear v. Workmen's Compensation Appeal Board (Crown Cork), 60 Pa. Commonwealth Ct. 529, 432 A.2d 273 (1981); Katz v. Evening Bulletin, 485 Pa. 536, 403 A.2d 518 (1979); rev'd, 498 Pa. 219, 445 A.2d 1190 (1982).

Furthermore, it has been settled in decisions of this Court that the period for giving notice does not begin to run until five elements of knowledge on the part of the Claimant have been established. Consolidation Coal v. Workmen's Compensation Appeal Board (Mountain), 47 Pa. Commonwealth Ct. 64, 407 A.2d 134 (1979). In that case, we stated:

In Zacek, supra, Judge Mencer made clear that the notice period begins when the claimant knows or should know of the existence of his disability resulting from an occupational disease and that disability’s possible relationship to his employment. In Republic Steel Corporation, supra, we have pointed out that the plain language of Section 311 thus spells out the notice period begins upon the conjunction of five elements: (1) knowledge or constructive knowledge (2) of disability (3) which exists, (4) which results from an occupational disease, and (5) which has a possible relationship to the employment. (Emphasis the Court’s.)

47 Pa. Commonwealth Ct. at 69, 407 A. 2d at 137.

While Consolidation Coal is an occupational disease case, the language used there is equally applicable to notice in injury cases under the amended version of Section 311 of The Workmen’s Compensation Act. Thus, in E.J.T. Construction, Inc. v. Workmen's Compensation Appeal Board (Larusso), 47 Pa. Commonwealth Ct. 492, 408 A.2d 226 (1979), where a telephone call was made to an employer’s representative to report the employe’s heart attack, we stated:

The second sentence of Section 311 of the Act clearly provides that when the relationship of the injury to the employment is not known to the employee, the 120-day period does not begin to run until the employee either knows or should know of such a relationship. Here, however, the referee foiled to make any finding whatever as to when the claimant knew or should have known of the causal relationship between his employment and his heart attack. And as the Board correctly pointed out in its opinion, there is no testimony of record concerning this crucial issue. Because further appellate review is impossible without this information, see Zacek v. Republic Steel Corp., 25 Pa. Commonwealth Ct. 199, 359 A.2d 842 (1976), we are compelled to remand the matter so that the factfinder can properly make relevant findings concerning when the notice period began to run.

47 Pa. Commonwealth Ct. at 495, 408 A.2d at 228. See also, City of Philadelphia v. Workmen’s Compensation Appeal Board (Erlink), 78 Pa. Commonwealth Ct. 260, 467 A.2d 405 (1983).

We conclude that as in E.J.T. Construction, Inc. remand is required here.⁵ All findings by the referee as to failure of notice on May 22 or 25, 1980, become irrelevant if Claimant was not aware of the relationship of his disability to his employment until June 6, 1980, or thereafter.

Accordingly, we will vacate and remand.

Order

And Now, April 28, 1986, the order of the Workmens Compensation Appeal Board, No. A-86696, dated August 2, 1984, is hereby vacated and this case is remanded for further proceedings and consideration consistent with the foregoing opinion.

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§631, 632, 633.

2 Wells, having testified as quoted on August 30, 1982, was recalled on November 30, 1982, at which time his testimony, although somewhat confused, would appear to contradict some of the quoted testimony.

3 The employer has not denied the existence of a male nurse. Notice to a company nurse, of course, is adequate to comply with the notice provisions of the Act. Blackshear v. Workmen's Compensation Appeal Board (Crown Cork), 60 Pa. Commonwealth Ct. 529, 432 A.2d 273 (1981).

4 Dr. Baltic saw and evaluated the Claimant on June 5, 1980, at which time a history of injury at work was given by Claimant “that the symptoms occurred on the 23rd of May, 1980 while bending over and lifting a bucket of material and experiencing pain involving the low back.” Respondents Brief, pp. 97-98.

5 E.J.T. Construction was followed in Rinehimer v. Workmen's Compensation Appeal Board, 66 Pa. Commonwealth Ct. 480, 444 A.2d 1339 (1982).