Cable v. Workmen's Compensation Appeal Board

PELLEGRINI, Judge,

dissenting.

I dissent to the majority’s holding that under Section 301(c)(2) of the Pennsylvania Workmen’s Compensation Act,1 an occupational disease claim is timely if filed within 300 weeks of claimant’s last date of employment rather than of exposure to the occupational hazard. I believe that such an interpretation is at odds with the plain language of that section and would affirm the Board.

The portion of Section 301(c)(2) of the Act at issue in this case provides:

[Wjhenever occupational disease is the basis for compensation, for disability or death under this act, it shall apply only to disability or death resulting from such disease and occurring within three hundred weeks *484of the last date of employment in an occupation or industry to which he was exposed to hazards of such disease.... (Emphasis added).

A plain reading of this portion is that the last date of employment referred to in this section triggering the beginning of the running of the 300 weeks is not the last day of work, but the last day the employee “was exposed to hazards of such disease.” To hold otherwise is to give no meaning to those quoted words.

Instead of relying on the language in the statute, the majority understandably relies on J & L Steel Corp. v. Workmen’s Compensation Appeal Board, 145 Pa.Commonwealth Ct. 201, 602 A.2d 912 (1992), where we indeed held that the time for filing, in that case, a fatal claim petition, runs from the date of last employment, not from the date of last exposure. However, the holding in J & L was made without reference to the language in Section 301(c)(2). Further, two subsequent decisions of this court, Avalotis Painting v. Workmen’s Compensation Appeal Board (Markulin), 153 Pa.Commonwealth Ct. 511, 621 A.2d 1167 (1993) and Hoosier Engineering Co. v. Workmen’s Compensation Appeal Board (Winters), 153 Pa.Commonwealth Ct. 229, 620 A.2d 697 (1993), place the continued vitality of J & L in doubt. Both of those cases involved the interpretation of a portion of Section 302(c)(2) which follows the language in question in this case. At issue was which employer was responsible when a claimant worked for multiple employers, all for less than a year — the one with the longest employment less than a year or the one with the longest exposure less than a year. That portion of Section 301(c)(2) provides that:

In the event the employee did not work in an exposure at least one year for any employer during the three hundred week period prior to disability or death, the employer liable for the compensation shall be that employer giving the longest period of employment in which the employee was exposed to the hazards of the disease claimed.

While the subject matter is different between the interpretation at issue here, as can be seen by a comparison of the language of this portion of the section with the one at issue in this case, there is a parallel internal construction in each instance in that the term “employment” in each portion is modified by the term “exposure.” In Avalotis and Hoosier, we found that based on the plain language of Section 301(c)(2), the responsible employer was the one with the longest period of exposure, not the longest period of employment. The majority fails to take into consideration those eases rejecting, in effect, J & L in favor of following J & L’s casual statement that it is a period of employment rather than exposure that controls.

To show that the majority’s interpretation is incorrect, an anomalous result occurs when an employee is exposed to an occupational hazard for one year, but works for the same employer another 40 years in an area that has no exposure to an occupational hazard. He then retires and an occupational disease manifests itself. Under the majority’s holding, Claimant has a viable claim if filed within 500 weeks of his last day of work, even though it has been 45 years from the last exposure. However, an employee who has the same one-year exposure but goes to work for another employer and has the same manifestation of the disease more than 300 weeks later, approximately six years later, under the majority’s holding, that employee’s claim would be time barred. The purpose of the Workmen’s Compensation Act is to treat all employees the same, not to protect certain employees just because they are fortunate enough to remain with the same employer throughout their careers.

Because the plain language of Section 301(c)(2) is 300 weeks from the last date of exposure, I would affirm the Board’s decision.

. Act of June 2, 1915, P.L. 736, as amended, 77 P.s. § 411(2).