# Moore v. Dodge Steel Co. > Superior Court of Pennsylvania · September 16, 1965 · 206 Pa. Super. 242 URL: https://www.frixlaw.com/law-library/cases/9696278 ## Case - **Full name:** Moore, Appellant, v. Dodge Steel Company - **Court:** Superior Court of Pennsylvania - **Decided:** September 16, 1965 - **Citations:** 206 Pa. Super. 242; 213 A.2d 130; 1965 Pa. Super. LEXIS 789 - **Precedential status:** Published - **Opinion:** Dissent by Watkins - **Judges:** Ervin, Wright, Watkins, Montgomery, Jacobs, Hoffman - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9696278 ## Opinion text Dissenting Opinion by Watkins, J.: The question involved in this appeal is the interpretation of §315 of The Pennsylvania Occupational Disease Act, 77 PS §1415, which provides that in case of disability all claims are barred unless filed within sixteen months after the beginning of compensable disability; and in death cases shall be barred unless a death claim is filed within sixteen months of the date of death. At the outset it should be pointed out that the courts have distinguished between time limitations under the Workmen’s Compensation and the Occupational Disease Acts. The prescribed time under which a claim for total disability due to occupational disease must be filed is a limitation upon the remedy and not upon the substantive right. Section 315 cannot be construed as a legislatively intended statute of repose. Ciabattoni v. Birdsboro St. F. & M. Co., 386 Pa. 179 , 125 A. 2d 365 (1956). There was only one right involved here, and that was the right of the decedent if totally disabled as a result of anthracosilicosis during his lifetime, to be awarded compensation. This right included payment of any balance due a dependent widow, if his disability resulted in death. There can be no question as to the right of the widow to claim the balance of the compensation due. The only question raised is whether the remedy is extinguished by the provisions of Section 315. The purpose of limitation periods in the Occupational Disease Act is to bring an end to employers' contingent liability. “The law recognizes that con *250 tingent liability of whatever nature must sometime end.” Gawlick v. Glen Alden Coal Co., 178 Pa. Superior Ct. 149 , 113 A. 2d 346 (1955). In the instant case, however, the defendant’s liability was pending before the compensation authorities by virtue of the original occupational disease claim made during his lifetime. The liability, if compensable disability was proven, included the payment of the balance to the dependent widow if this disability was the cause of his death. The court below conceded there was “no harm to the defendants in permitting the death claim to stand except for the legislative mandate of Sec. 315. All parties were aware of both the employe’s claim and the widow’s claim . . .”. It has always been held by this Court that we adopt a liberal construction as a guide in workmen’s compensation and occupational disease cases to effectuate the remedial purposes of the Acts. Roschak v. Vulcan Iron Works, 157 Pa. Superior Ct. 227 , 42 A. 2d 280 (1945). The referee and the board considered the widow’s claim to be a continuation of the disability claim of the employee and that it was not barred by Sec. 315. The board relied on Toffalori v. Donatelli Granite Co., 157 Pa. Superior Ct. 311 , 43 A. 2d 584 (1945), and properly so and I am not impressed by the effort of the court below and the majority to distinguish it. In the Toffalori case, supra, thé decedent died three years and seven months after the date of last exposure, after having received compensation for total disability during his lifetime. The widow filed for the balance and the three-year limitation was pleaded. This Court said, “since the petition was not an original claim, and since death was not the cause for compensation the claim was not barred.” In the Toffalori case there was a factual situation where there was a matter pending before the board and there was an existing award to *251 which the widow’s claim conld attach as a continuation. In the instant case the original disability claim petition, when filed, immediately tolled the sixteen months limitation period. No hearing was held before his death and the disposal of the original disability claim as well as the claimant-widow’s claim was made on March 19, 1964 which was more than four years after the filing of the original claim and over three years from the date of death. The referee found and the board affirmed that on June 16, 1959 the decedent was rendered totally disabled by silicosis; that the claimant-widow was totally dependent on the decedent; and that he died as a result of silicosis. It makes common sense and good logic that the widow, knowing that a claim had been filed by her husband, that she should await the determination of total disability before seeking the balance when no amount had yet been determined to be due. If the hearing had been held and decided against the claimant, then the widow’s action would not be a claim for the balance due because of total disability but an original death claim and in such case, if her action was brought more than sixteen months from the date of death it would be barred. Shrum v. Atlantic Crushed Coke Co., 186 Pa. Superior Ct. 377 , 142 A. 2d 792 (1958). In that case this Court said: “The difficulty with this position is that there is nothing to which a continuity attaches.” I agree, but this Court further said in discussing the Toffalori case in the Shrum , case, supra, at page 382: “But in that case the decedent had received an award of compensation for total disability during his lifetime. There was an award to which the widow’s claim could attach.” In Wonderlick v. The Phila. & Read. C. & I. Co., 170 Pa. Superior Ct. 65 , 84 A. 2d 233 (1951), we held that: “Where the claim for compensation is founded on death, the meaning of the *252 statute is clear and unambiguous. Such claim is valid only where the death alleged as a cause for compensation has occurred within the three-year period . . .". Meyers v. Moxham Coal Co., 293 Pa. 7 , 141 A. 643 (1928), was based on the interpretation of a time limitation in the Workmen’s Compensation Act. In this case no claim petition was filed during the lifetime of the decedent. The claim petition was an original claim and the “cause for compensation was death”. As such the claim was properly barred by the statute. But in the Toffalori case, supra, and in the instant case the claim petitions were not original claims. The original claims had been filed by the decedents during their lifetime and the cause for compensation was total disability and not death. I believe there is a clear distinction in the statute in regard to disability and death. That if a claim for disability caused by occupational disease is filed it tolls the statute. If death occurs before decision in the disability claim the widow’s rights continue as a part of that case. If the decision favors the claimant and disability payments were made, the amount paid to the decedent for disability would be deducted from any amount due to the claimant-widow. The defendant is in no way harmed because the burden is still on the claimant to prove not only that occupational disease caused the disability of her husband but also caused his death. I would reverse, reinstate the decision of the Workmen’s Compensation Board, and direct judgment to be entered on the award. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9696278. Public record. Not legal advice.