49 Pa. Commw. 29 | Pa. Commw. Ct. | 1980
Opinion by
This is an appeal from an order of the Workmen’s Compensation Appeal Board (Board) affirming the referee’s decision granting benefits to Henry Honacki (Claimant).
Claimant applied for Federal Black Lung benefits on March 8, 1976. He did not apply for Pennsylvania Workmen’s Compensation benefits
After two hearings the referee awarded benefits from the date of notice.
Employer argues that (1) the referee and the Board erred in awarding Claimant benefits for disability for the reason that the Claimant failed to prove by medical evidence that his disability resulted in whole or in part from Claimant’s exposure to hazard of an occupational disease after June 30, 1973 as required by Section 301(c) of the Act, 77 P.S. §411, and
This Court has repeatedly rejected arguments that the Act requires “ ‘direct medical testimony of the relationship between the post June 30, 1973 exposure and the Claimant’s disability.’ ” Rochester and Pittsburgh Coal Co. v. Workmen’s Compensation Appeal Board, 29 Pa. Commonwealth Ct. 484, 486, 371 A.2d 562, 563 (1977). Even if we were to accept Employer’s argument that competent medical evidence is necessary to substantiate a claim of post June 30, 1973 exposure, the record before us in the present case is replete with such evidence. The record indicates that on July 9, 1976, Dr. Levine wrote unequivocally that Claimant was totally and permanently disabled due to pneumoconiosis “due to the total cumulative exposure to coal dust throughout his entire working experience.” (Emphasis added.) Employer argues that Dr. Levine’s final diagnosis will not suffice as competent medical evidence in view of the doctor’s initial letter of July 2,1976. In that letter, the doctor indicated that Claimant’s work above ground did not involve exposure to coal dust. However, the referee chose to rely upon the doctor’s final diagnosis and the Claimant’s own testimony concerning his exposure to coal dust while working as a lampman and janitor. Clearly, this was within the referee’s prerogative.
We have routinely reiterated that in workmen’s compensation cases, questions of credibility and the choice between conflicting testimony including such as may arise from a witness’ inconsistent testimony or from conflicting testimony of two or more witnesses are for the referee, not for the reviewing court. American Refrigerator Equipment Co. v. Workmen’s Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 377 A.2d 1007 (1977).
Finally, Employer argues that the facts that Claimant terminated his employment on January 30, 1976, that he filed for Federal Black Lung benefits on March 8, 1976, and that he said in his application for those benefits that he had been told by a physician that he had pneumoconiosis indicate that the Claimant knew or should have known of his disability at least by February of 1976. Inasmuch as that date would be beyond the 120 days from the date Employer received his notice, Employer contends that the claim must be dismissed. We disagree.
Finding no merit in either of Employer’s contentions, we affirm.
Order
And Now, this 23rd day of January, 1980, the order of the Workmen’s Compensation Appeal Board dated November 2,1978, is hereby affirmed and judgment is entered in favor of Henry Z. Honacki. Republic Steel Corporation is ordered and directed to pay compensation to the Claimant at the rate of $187.00 per week beginning on September 13, 1976. The award shall bear interest on all deferred payments at the rate of 10 per cent per annum. Republic Steel Corporation shall also pay costs in the amount of $108.00 to United Mine Workers of America District 5.
Section 108(q) of The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Act of December 6, 1972, P.L. 1627, 77 P.S. §27.1 (q), provides benefits for those individuals who have become totally and permanently disabled as a result of anthraeosilicosis (coal worker’s pneumoconiosis).
[U]nless the employee . . . shall give notice thereof to ' the employer within twenty-one days after the injury, no compensation shall be due until such notice be given. . . .
Section 311 of the Act, 77 P.S. §631.