City of Erie v. Workmen's Compensation Appeal Board

PELLEGRINI, Judge,

dissenting.

I respectfully dissent. The majority erroneously deprives firefighters with more than four years of service of the presumption created by both Section 108 and Section 301 of the Pennsylvania Workmen’s Compensation Act 1 (Act), by holding them to the same standards as other claimants in giving an employer notice of the work-relatedness of a heart attack.

Kenneth Shannon (Claimant) was employed by the City of Erie (Employer) as a firefighter for 30 years. On December 4, 1980, while at home, Claimant suffered a heart attack, subsequently underwent open heart surgery, and has been disabled ever since. While he never filed an incident report with the Employer stating that he suffered a *221 heart attack, there is no dispute that Employer was aware that Claimant had suffered a heart attack due to phone calls made by his sister to Employer calling him in sick, a note from his doctor, knowledge of high-ranking fire department officials, and Claimant’s filing of a claim for sick and accident benefits. None of those contacts, however, informed the Employer specifically that Claimant believed the heart attack to be work-related.

Sections 311 and 312 of the Act, 77 P.S. §§ 631 and 632, provide when and what type of notice a claimant must provide to an employer in order to perfect his or her claim. Section 311 provides that notice of a work-related injury must be given by the claimant within 120 days of the injury:

Unless the employer shall have knowledge of the occurrence of the injury or unless the employe or someone in his behalf or some of the dependents or someone in their behalf 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 be given within one hundred and twenty days after the occurrence of the injury, no compensation shall be allowed. However, in cases of injury resulting from ionizing radiation or any other cause in which the nature of the injury or its relationship to the employment is not known to the employe, the time for giving notice shall not begin to run until the employe knows or by the exercise of reasonable diligence should know of the existence of the injury and its possible relationship to his employment. The term ‘injury’ in this section means in cases of occupational disease, disability resulting from occupational disease.

77 P.S. § 631.

Section 312 provides as to the content of the notice as follows:

The notice referred to in section three hundred and eleven shall inform the employer that a certain employe received an injury, described in ordinary language, in the course *222 of his employment or about a specified time, at or near a place specified. (Emphasis added).

77 P.S. § 632.

To satisfy the requirement that notice has been given within the requisite 120 days that the injury was work-related, the notice must ordinarily set forth both the type of injury and that the injury is work-related. If such notice is not given within the prescribed time limit, then any claim for compensation is time barred. Auto Service Councils of Pennsylvania, Inc. v. Workmen’s Compensation Appeal Board (Compton), 139 Pa.Commonwealth Ct. 466, 590 A.2d 1355 (1991).

In the case of firefighters with more than four years service, however, once an employer has actual knowledge of the heart attack, because of presumptions contained in the Act, the employer constructively receives the requisite notice required under Sections 311 and 312, including that the firefighter’s heart attack was work-related.

Section 301(e) of the Act, 77 P.S. § 413, creates a rebuttable presumption that any occupational disease recognized by the Act was caused by the claimant’s employment. That section provides:

If it be shown that the employe, at or immediately before the date of disability, was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed that the employe’s occupational disease arose out of and in the course of his employment, but this presumption shall not be conclusive.

77 P.S. § 413.

Section 108 of the Act, 77 P.S. § 27.1(o), includes diseases of the heart and lung as an occupational disease. It provides that any heart and lung disease incurred by a firefighter with more than four years of service was caused by his or her employment. That section provides:

The term ‘occupational disease’ as used in this act shall mean only the following diseases. *223 (o) Diseases of the heart and lungs, resulting in either temporary or permanent total or partial disability or death, after four years or more of service in fire fighting for the benefit or safety of the public, caused by extreme over-exertion in times of stress or danger or by exposure to heat, smoke, fumes or gasses, arising directly out of the employment of any such fireman. (Emphasis added).

77 P.S. § 27.1(o).

Under the presumption created by these two provisions, the employer is constructively put on notice that until rebutted, the heart attack incurred by a firefighter is work-related.

The majority holds that this presumption is inapplicable in satisfying the requisite notice requirements contained in Sections 311 and 312 of the Act by holding that Sections 108 and 301 merely create an evidentiary advantage for the claimant by shifting the burden to the employer to establish that the heart attack was work-related. However, Sections 108 and 301 do more — they reverse one of the Act’s key statutory presumptions that an injury or disease is presumed to be not work-related to one that certain injuries and diseases are presumed to be work-related, ab initio. By changing this statutory presumption, it makes work-relatedness a “y°u understood” situation once the employer receives notice that an employee incurred such an injury or disease, including heart attacks suffered by firefighters with more than four years of service.

In this case, the Employer had actual knowledge of the heart attack. Once the Employer was aware of that fact, and that the firefighter had more than four years of service, the Employer had constructive notice that the heart attack was work-related. Accordingly, I would affirm the Board’s decision.

COLINS and FRIEDMAN, JJ., join in this dissent.

. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1-1031.