Miller v. Workmen's Compensation Appeal Board

Opinion by Judge Blatt, Dolores Ann Miller (claimant) appeals from an order of the Workmen’s Compensation Appeal Board (Board) affirming a referee’s dismissal of her claim petition. The claimant was employed by the Atlas Powder Company (employer) for approximately twenty-three (23) years until she resigned on September 13, 1974. On March 11, 1976, she filed a claim petition seeking [24] total disability benefits as a result of a back injury allegedly sustained on tbe date of her resignation. Tbe referee found that sbe bad failed to communicate ber alleged injury to an agent of tbe employer within tbe statutory time limit mandated by Section 311 of Tbe Pennsylvania Workmen’s Compensation Act.1 Concluding that tbe testimony of Dr. Richard K. White, tbe medical witness for tbe employer, was more credible than tbe testimony of tbe claimant’s medical witness, tbe referee also found that sbe was not totally disabled. Sbe appealed to tbe Board which affirmed tbe referee without bearing additional evidence. Our scope of review in a workmen’s compensation case where tbe party with tbe burden of proof2 did not prevail below and where tbe Board took no additional evidence is to determine whether or not tbe referee as fact finder capriciously disregarded competent evidence, leaving to tbe referee questions of credibility and tbe resolution of conflicts in testimony. Cooper v. Workmen’s Compensation Appeal Board, 49 Pa. Commonwealth Ct. 488, 411 A.2d 859 (1980). The claimant argues here that tbe record does not contain substantial evidence in support of tbe ref [25] eree’s conclusion that timely notice was not received by the employer. Whether or not the employer received notice of the injury or had actual knowledge of the injury pursuant to Section 311 of the Act, 77 P.S. §631 is, of course, a question of fact for the referee. Travelers Insurance Co. v. Workmen’s Compensation Appeal Board (Levine), 68 Pa. Commonwealth Ct. 24, 447 A.2d 1116 (1982). And this section mandates that, if the employer has neither actual knowledge nor notice of an injury within one hundred and twenty days of its occurrence, compensation must be barred. Canterna v. United States Steel Corp., 12 Pa. Commonwealth Ct. 579, 317 A.2d 355 (1974). Moreover, it has been held that judicial construction may not serve to extend the period for giving notice in the absence of fraud by the employer or prejudice to the employee, neither of which were asserted here. Id. The claimant argues that she conveyed the fact of her on-the-job injury to a number of supervisory employees on the date of its occurrence on September 13, 1974. Yet none of these supervisory employees testified in support of her assertion; on the contrary, it is undisputed that she had a history of back problems, and that each of the supervisory employees to whom she claims to have reported the alleged work injury knew of this medical history. Further, each such supervisory employee testified at the hearing before the referee that the claimant left work on September 13, 1974 after complaining merely that her back hurt. In addition, no documents, which would normally have been filed if an injury had been reported as having occurred at work that day were processed. The referee was convinced, therefore, that the employer did not receive notice of the alleged injury until March 11, 1976 when the claimant filed her claim petition, which was long after the 120 day time period had run. And, after a thorough review of the record, we cannot say [26] that the referee capriciously disregarded any competent evidence. Inasmuch as the claimant failed to provide her employer with timely notice as mandated under Section 311 of the Act, her claim is barred, and we need not discuss whether or not she suffered any disability. Accordingly, the decision of the Workmen’s Compensation Appeal Board is affirmed. Order. And Now, this 21st day of October, 1983, the order of the Workmen’s Compensation Appeal Board, dated August 2,1982, is affirmed. Footnotes [1] Section 311 of The Pennsylvania Workmen’s Compensation Act, Act of June 2,1915, P.L. 736, as amended, 77 P.'S. §631. Section 311 provides, in pant: Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe . . . shall give notice thereof to the employer within twenty-one days after the injury, no compensation shall be due until such notice be given, and, unless such notice he given within one hundred and twenty days after the occurrence of the injury, no compensation shall be allowed.... [2] A workmen’s compensation claimant has the burden of proving all elements necessary to support an award by substantial evidence. Novaselec v. Workmen’s Compensation Appeal Board, 16 Pa. Commonwealth Ct. 550, 332 A.2d 581 (1975).