Republic Steel Corp. v. Commonwealth

Dissenting Opinion by

Judge Menoeb :

I respectfully dissent.

Joseph Zacek (claimant) was employed by Republic Steel Corporation (employer) as a coal miner from 1956 through 1973. On December 31,1973, claimant retired because he was experiencing breathing difficulties which rendered him unable to perform his normal duties. On June 24, 1974, he was informed by a physician that he was totally disabled from anthracosilicosis. On July 2, 1974, claimant notified *86Ms employer of Ms disability due to an occupational disease, and on July 8, 1974, he filed a workmen’s compensation claim petition.

Insofar as applicable to occupational diseases, Section 311 of The Pennsylvania Workmen’s Compensation Act (Act) Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §631, requires that an employee notify Ms employer of Ms disability within 120 days of the date that the employee (1) becomes disabled1 and (2) knows, or in the exercise of reasonable diligence should know, of the possible relationsMp between the disability and his employment. McManus v. Rochester & Pittsburgh Coal Co., 29 Pa. Commonwealth Ct. 91, 368 A.2d 1365 (1977). The purpose of the notice requirement is to protect the employer against claims made after opportumty for a full and complete investigation has passed, and the logical triggering event is therefore “a claimant’s knowledge of his physical inability to work and its possible relationship to his employment.” Garden Coal Co. v. Workmen’s Compensation Appeal Board, 27 Pa. Commonwealth Ct. 568, 573 n. 4, 367 A.2d 360, 363 n. 4 (1976) (emphasis in original). That is, when an employee knows or should know that he has a claim for compensation, notice should be given to the employer within 120 days to allow for as complete an investigation as possible, and the fact that the employee may not know for certain whether he is totally or only partially disabled should not relieve Mm of this obligation.

*87The issues in this case are (1) whether the claimant was disabled when he retired on December 31, 1973 and (2), if he was disabled, whether at that time he knew, or should have known, of the possible relationship between his disability and his employment.

With regard to the first issue, one who is unable to perform his normal duties and who, as a result, suffers a loss of earning power is disabled as a matter of law and is entitled to benefits for a total disability, absent a showing that jobs which he is capable of performing are available. See, e.g., Barrett v. Otis Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968). The fact that an employee may not know for certain whether he is totally or only partially disabled does not relieve him of the obligation to give notice within 120 days of the time he becomes disabled.

In this case, the referee made no finding concerning when claimant became unable to perform his normal job. However, the only conclusion which can reasonably be drawn from the evidence is that the claimant was unable to perform his duties on December 31, 1973 and that it was for this reason that he retired. The relevant portions of the claimant’s testimony follow:

Q. Is that why you quit because ... A. No, I had — because I didn’t have no wind no more couldn’t breathe. That is the reason I did. Another thing I had to sweat it out till I was 62 to get some kind of income. I should have got out couple years before that but I had to keep on working or else starve to death. Q. Were you aware, Mr. Zacek, when you left the mines that you had pneumoconiosis? A. Yes, yes. Q. Were you unable to do your normal duties? A. That is right. I told the boss I couldn’t do *88it. I said, ‘I am going to try to last till I am 62. I have- got to get out before I fall over. ’

A finding that claimant was not disabled, to some extent, on December 31, 1973 would be in capricious disregard of claimant’s testimony.

Turning to the second issue, it is again clear beyond doubt, from the claimant’s own testimony, that on December 31, 1973 he knew, or should have known, of the possible relationship between his disability and his employment. Claimant testified that before he retired his physician told him that he had “miners’ asthma” and that he should therefore get out of the mines.2 This would clearly alert any reasonable man to the possibility that his breathing difficulties were related to conditions in the mine.

Since claimant’s own testimony compels a conclusion that on December 31, 1973 he was disabled and knew, or should have known, of the possible relationship between the disability and his employment, the notice given 6 months later was untimely and the award of benefits should be denied.

President Judge Bowman joins in this dissent.

It is my view that the findings of the referee and the majority opinion have added the word “total” before the word “disability” in arriving at the point in time at which the notice requirements of Section 311 shall commence. However, Section 311 provides that an employee give the required notice of his disability (partial as well as total) within 120 days of the date that the employee becomes disabled (partially as well as totally). To limit the commencement of the period to give notice to the date *87that the employee becomes totally disabled, seems to me to be a judicial amendment of Section 311.

In bis eighth finding of fact, the referee found that “the claimant knew that he had a cough, loss of sleep, shortness of breath, and sputum production, and was also aware that he had pneumoconiosis on x-ray, and furthermore was advised by his treating physician, Dr. Cerne, while he was still working that he had miners asthma. . . .”