Pawlosky v. Workmen's Compensation Appeal Board

McDERMOTT, Justice,

concurring.

I join in the opinion of the Majority. However, I write separately to express my own comments on this issue. In its original classic conception Workmen’s Compensation was compensation for a direct violent injury to a person’s physical structure which occurred at the workplace. As the concept evolved, by salutary legislation, it came to embrace more than a direct violent injury. It was recognized that in some occupations the nature of the work and the materials used did injury to the interstices of the body that could remain unknown and undetected. The legislature perceived these possibilities of injury from alien mixtures, uses of materials and methods, theretofore unknown to nature or science, that could pass latent poisons osmotically into the body and, after long years of work, suddenly flash out. In 1939 the General Assembly took the matter in hand and passed the Occupational Diseases Act 1 to cover non-traumatic occupational injury. Then in 1972 the General Assembly revised and redefined the Workmen’s Compensation Act 2 and included in one enactment provisions for both direct traumatic injury and occupational disease.

Prior to 1972, in order to establish entitlement to workmen’s compensation benefits, a claimant had to prove both *464 an accident and an injury. See Section 301(a), 77 P.S. § 431, Act of June 2, 1915, P.L. 736, art. Ill, § 301(a), as amended (repealed); Hinkle v. H.J. Heinz Co., 462 Pa. 111 , 337 A.2d 907 (1975). In concert with the “accident” requirement, Section 301(c) defined “injury” and “personal injury” to include “only violence to the physical structure of the body, and such disease or infection as naturally results therefrom.” See 77 P.S. § 411, Act of June 2, P.L. 736, art. III § 301(c), as amended (repealed). In contrast, an employee suffering from an occupational disease, a non-traumatic injury, had to pursue his claim under the Occupational Disease Act.

The 1972 amendments to the Workmen’s Compensation Act eliminated the requirement that a claimant’s injuries be the result of an accident and merely required that he suffer “an injury in the course of his employment.” Section 301(a), 77 P.S. § 431, Act of March 29, 1972, P.L. 159 No. 61, § 11, as amended. Contemporaneously, the definition of “injury” under Section 301(c) was amended by the deletion of the requirement that there be “violence to the physical structure of the body.” This was replaced with the present definition — “an injury to an employee, regardless of his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury or is aggravated, reactivated or accelerated by the injury.” In addition, Section 301(c) was renumbered as Section 301(c)(1), and subparagraph 301(c)(2) was added which expanded the term “injury” to include occupational diseases as defined in Section 108. See 77 P.S. § 411(1); (2), Act of March 29, 1972, P.L. 159, No. 61, § 7, as amended.

It was the purpose of these amendments to make unequivocal the inclusion within the realm of compensable injury, those injuries, which previously required the judicial expansion of “accident” and/or “violence to the physical structure of the body” to render a claim compensable. See Workmen’s Compensation Appeal Board v. Bernard S. Pincus Co., 479 Pa. 286 , 388 A.2d 659 (1978).

*465 In this appeal claimant does not assert that he suffered one of the occupational diseases discussed in Section 108, and he admits that he has not met the burden of proof required under Section 108(n). However, his claim is that unhealthful fumes aggravated a preexisting asthmatic condition, and that such aggravation constituted an injury under the general injury category of Section 301(c)(1). Claimant does not claim that he would have been otherwise injured by the fumes but for his pre-existing condition. The question thus becomes whether a claimant, who has alleged that a pre-existing non-occupational disease was aggravated by long-term exposure to conditions peculiar to the work place, must pursue his claim for compensation under those provisions of the Workmen’s Compensation Act which describe occupational diseases, as opposed to the general injury provisions of the Act.

Appellant contends that this case turns on the standards to be applied to a claim where the injury alleged is an aggravation of a pre-existing non-occupational condition. Appellant further contends that this standard should be distinct from other injury situations. The latter contention is erroneous.

As set out above Section 301(c)(1) states unambiguously that an employee may recover for an injury “regardless of his previous physical condition,” 77 P.S. 411(1). Thus, the Act makes it clear that an employer takes his employees as he finds them; and regardless of whether an employee experiences a new injury on the employer’s premises, or aggravates a pre-existing condition, there is no effect on his entitlement if he can show a causal connection between the injury and the workplace.

Next, appellant contends that claimant’s disability is not the result of injury as contemplated in Section 301(c)(1). Rather, appellant argues that compensation for injuries such as the claimant’s (which the Board has described as occupational “disease-like”) requires a claimant to proceed under Section 301(c)(2) in conjunction with Section 108. Section 301(c)(2) provides in relevant part:

*466 The term injury, personal injury, and injury arising in the course of his employment as used in this act shall include, unless the context clearly requires otherwise, occupational diseases as defined in Section 108 of this act:

77 P.S. § 411(2). Section 108 sets out sixteen specific occupational diseases, subsection (a)-(m); (oHq), and one general category, subsection (n), which provides for inclusion of:

All other diseases (1) to which the claimant is exposed by reason of his employment, and (2) which are causally related to the industry or occupation, and (3) the incidence of which is substantially greater in that industry or occupation than in the general population.

77 P.S. § 27.1 (aHq).

Appellant’s argument basically construes Section 301(c)(2) as a modification of Section 301(c)(1), rather than an expansion. At first glance that argument has some appeal. However, when these sections are considered in the overall context of the Act, and bearing in mind the remedial purposes sought to be furthered by the Act, it cannot be accepted.

In construing a statute we are governed by the Statutory Construction Act of 1972. 3 That Act provides, inter alia, the following rules: “[T]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly;” 4 “[W]hen the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering among other matters .. the mischief to be remedied [and] the object to be obtained;” 5 and statutes other than those specifically referred to in 1 Pa.C.S. § 1928(b) 6 “shall be liberally construed to effect their objects and to promote justice.” 7

*467 As the majority notes, the Workmens’ Compensation Act does not contain any category of occupational “disease-like” disabilities. What the Act does recognize is certain specific diseases which have been accepted as occupational diseases (e.g., silicosis, asbestosis); 8 and an open category of other diseases, which may in the future warrant specific inclusion, but at the time of the drafting of the statute were not well recognized. 9 For these latter diseases the legislature wisely left the door open, such that workers stricken with yet undiscovered industry-related diseases will not be ignored. The significance of establishing that a claimant has an occupational disease under Section 108 is that the claimant then becomes presumptively entitled to benefits. See Section 301(e), 77 P.S. § 413. 10

It is appellant’s position, however, that Section 108 is intended to accomplish more than merely raising the presumption of entitlement. Appellant construes Section 108 as the exclusive means by which a claimant must prove entitlement for an insidious disease. For the reasons set forth below this exclusivity argument must be rejected.

The categories described in Section 108 are not the basis for entitlement to benefits; rather they are a method of establishing an injury to be benefited. By establishing the existence of an occupational disease under Section 108, the claimant is then cloaked with a presumption that his injury “arose out of and in the course of his employment.” Section 301(e), 77 P.S. § 413. Section 108(n) is a method for securing that presumption. If its requirements are met the *468 disease alleged then, in effect, becomes an occupational disease under Section 108, and its etiology is presumed, thereby reducing the burden of proof that the injury occurred at the workplace.

On the other hand, a claimant proceeding solely under Section 301(c)(1) enjoys no such presumption. Rather he must prove by unequivocal evidence that he was injured, and that the injury “arose in the course of his employment and was related thereto.” Section 301(c)(1), 77 P.S. § 411. Krawchuk v. Philadelphia Electric Company, 497 Pa. 115 , 439 A.2d 627 (1981). This burden, as is evidenced by the great number of unsuccessful cases which we see in our system, is not a mere perfunctory burden. See Commonwealth, Workmen’s Compensation Appeal Board v. Lewis, 508 Pa. 360 , 498 A.2d 800 (1985).

The suggestion that a claimant who seeks coverage for an insidious disease has a lesser burden under the general injury provision of the Act must be rejected. A claimant who seeks coverage under this provision stands alone, and seeks to establish that he, regardless of all others, was injured as a result of his employment. Indeed, since this claimant must proceed without the benefit of any presumptions he may very well have a greater burden of proof than one who can establish his eligibility by reference to Section 108.

Moreover, to accept appellant’s position would be to condone the anomalous situation whereby a claimant could be denied benefits merely because the disease with which he was afflicted was not yet associated with his industry, even though he could unequivocally establish that he suffered a disease caused by a condition in the employee’s workplace. We cannot accept, under the humanitarian purpose of the Act, that any injury proven to have occurred at a workplace is left unprovided. The methods of proving such an injury may vary, but the entitlement to benefits for proven injury cannot be denied because there are different options for proof.

*469 Hence, the inhalation of poisonous fumes can cause injuries and where found, whether under Section 301 or Section 108, they are compensable. The Board’s concept that entitlement is denied because proof fails under Section 108(n), is a confusion of the means with the eiid. An injury at the workplace is compensable if it occurred at the workplace. Under Section 301, proofs of that injury may be a heavier burden than required under 108 and 108(n), but because 108 and 108(n) cannot be proven does not mean that Section 301 proofs are denied a forum. Section 108 and 108(n) provide options for proof, and should not be construed as a denial of the right to prove an injury.

ZAPPALA, J., joins in this concurring opinion.

. Act of June 21, 1939, P.L. 566, No. 284, § 101 et seq., as amended, 77 P.S. § 1201 et seq.

. Act of June 2, 1915, P.L. 736, art. 1, § 101 et seq., as amended, 77 P.S. § 1 et seq.

. Act of December 6, 1982, No. 290 §3 et seq.

. 1 Pa.C.S. § 1921(a).

. 1 Pa.C.S. § 1921(c).

. The Workmen's Compensation Act is not of the type of statute referred to in Section 1928(b).

. 1 Pa.C.S. § 1928(c).

. See Section 108 (a)-(m), (o)-(q); 77 P.S. § 27.1(a)-(m), (o)-(q).

. See Section 108(n); 77 P.S. § 27.1(n).

. Section 301(e) 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.