The opinion
Dissenting Opinion by
Judge Doyle:
The issue confronting us in this case is one of first impression: where a claimant has given notice to his employer within 21 days of his knowledge of a totally disabling disease, which is three years after his actual disability, are benefits to be paid retroactive to the actual date of disability, or, are they to be paid only from the date the employer is given notice?
If we conclude, as does the majority, that benefits may be paid retroactive to the date of actual disability, then the threshhold determination of when the Claimant knew or should have known of his disease is an essential fact that must be determined by the referee; how *244 else could we determine if notice was within 21 days of a particular date if we are left without a finding as to what that date is?
If we conclude, however, as I do and the Board did, that notice given more than 21 days after the date of actual disability, triggers the payment of benefits only from the date of that notice, then a remand is not necessary because, as the Board in this instance concluded, the first date of actual disability and the date of notice, are undisputed. The referee made a fact finding (No. 12) that, “[cjompensation is to begin with Claimants first date of disability, or October 26, 1978” (emphasis added). It is undisputed that notice was not given, however, until January 12, 1982, when Claimant first became aware of the occupational nature of his disease. Benefits should begin, therefore, as of this latter date, and the Board so held in amending the referees decision and order. Succinctly stated, the 21 day notice period which begins compensation, is measured from the date established as the Claimants actual disability, not the date that the Claimant first “knew or should have known” that he was disabled. On the other hand, it is abundantly clear, that the 120-day statute of repose is tolled until Claimant knows, or should know, of his injury.
Stripped of excess verbiage, Section 311 of The Pennsylvania Workmens Compensation Act (Act), 1 77 P.S. §631, pertinently states as follows:
Unless the . . . employe . . . shall give notice ... to the employer within twenty-one days after the injury, no compensation shall be due until such notice be given, and, unless such notice be given within one hundred and twenty days after the occurrence of the injury, no compensa *245 tion shall be allowed. However, in cases of [asbestosis] . . . the time for giving notice shall not begin to run until the employe knows, or . . . should know, of the existence of the injury.
1 would interpret this to mean that unless employers are given notice within 21 days of the employees actual injury, benefits commence when the employer is notified. The time for giving notice is extended for the benefit of the employee only as to that part of Section 311 which is a statute of repose, i.e., the 120 day notice requirement which, theoretically, under Section 311 of The Occupational Disease Act (ODA), 2 77 P.S. §1411, and, statutorily, under Section 311 of the Workmens Compensation Act, parallels the application of a “discovery rule” which tolls the running of the limitation provisions under Section 315 of the Act, 77 P.S. §602, and Section 315 of the ODA, 77 P.S. §1415. See Ciabattoni v. Birdsboro Steel Foundry & Machine Co., 386 Pa. 179 , 125 A.2d 365 (1956); see also Torrey, Time Limitations in the Pennsylvania Workmens Compensation and Occupational Disease Acts: Theoretical Doctrine and Current Applications, 24 Duq. L. Rev. 975 (1986).
*246 Furthermore, unlike the reasoning underlying a statute of limitations and a statute of repose (provisions which are found in both the Act and the ODA) we have stated in Township of Upper Darby v. Workmen's Compensation Appeal Board, 53 Pa. Commonwealth Ct. 438, 442 , 417 A.2d 1319, 1321 (1980), “[t]he purpose of the [21 day] notice requirement of Section 311 is to apprise the employer of the claim and to give the opportunity for a thorough investigation while the events are recent.” But see Torrey at 1061 n. 434. This interpretation would also be in harmony with Section 406.1 of the Act, 3 77 P.S. §717.1 which states that, “[t]he first installment of compensation shall be paid not later than the twenty-first day after the employer has notice or knowledge of the employes disability.”
The Claimant argues to us Jones & Laughlin Steel Corp. v. Workmen's Compensation Appeal Board (Feiertag), 90 Pa. Commonwealth Ct. 567 , 496 A.2d 412 (1985), as authority for the principle that when notice is given within 21 days of a claimants knowledge, benefits are granted beginning with the date of disability. Feiertag did not so hold nor did the Court even address this issue. With regard to Section 311, Feiertag discusses only the 120 day requirement and held only that, although the claimant was disabled by an occupational disease as of February 1976, because he did not acquire knowledge of the diagnosis until December 23, 1980, “notice given the employer on January 9, 1981 was timely and in compliance with Section 311.” Id. at 574 , 496 A.2d at 417 . No mention was made of the date when benefits were to begin. Likewise, in Culp Industrial Insulation v. Workmen's Compensation Appeal Board, 57 Pa. Commonwealth Ct. 599 , 426 A.2d 1263 *247 (1981) and Sierzega v. United States Steel Corp., 204 Pa. Superior Ct. 531 , 205 A.2d 696 (1964) the answer which we now seek remained elusive. In Culp the facts are similar but for the essential fact that the claimant did not notify the employer within the 21 days; the Court concluded, therefore, that no compensation would be due until the date of notice. In Sierzega, which does provide an identical factual matrix, the question was not presented, nor voluntarily answered, by the court. There the evidence established that the claimant was totally disabled on July 1, 1960 and that he was first advised of the occupational disease (silicosis) on September 15, 1961. The Court held that, “[t]he statute of limitation begins to run from the time the employe is disabled and definitely knows or should know of his disability from silicosis. It follows that notice was clearly given icithin the required period of 120 days” Id. at 537, 205 at 699 (citations omitted; emphasis added). No mention is made of when benefits should begin, although Section 311 required notice to the employer within 21 days or, failing such notice, no compensation would be due until such notice was given.
I therefore dissent and would affirm the Boards opinion which, in essential part states:
We find that since the claimant was first advised as to when a causal relationship between his employment and his work-related injury existed [was] on January 12, 1982, the proper date of commencement of compensation should be January 12, 1982.
After a careful review of the record, we find that compensation should commence on January 12, 1982, the date that the claimant knew, or should have known of a causal relationship between his employment and work-related injury, *248 and therefore, we amend the Referees order. Accordingly, in all other respects, the decision of the Referee is affirmed as amended.
Act of June 2, 1915, P.L. 732, as amended.
Act of June 21, 1939 P.L. 566, as amended. Section 311 of the ODA states:
Unless the employe . . . shall give notice of disability to the employer . . . within twenty-one days after compensable disability begins, no compensation shall be due until
such notice be given, and unless such notice be given within one hundred and twenty days after the beginning of compensable disability no compensation shall be allowed.
No reference is made here, in contrast to Section 311 of the Workmens Compensation Act, that “the time for giving notice shall not begin to run until the employe knows, or . . . should know, of the existence of the injury . . .” because the term “compensable disability” is used instead. See Ciabattoni v. Birdsboro Steel Foundry & Machine Co., 386 Pa. 179 , 125 A.2d 365 (1956).
Section 406.1 was added by Section 3 of the Act of February 8, 1972, P.L. 25.