ARMCO, Inc. v. Workmen's Compensation Appeal Board

CAPPY, Justice,

concurring.

I am constrained to concur in the result reached by the Majority, as I believe it is required by the applicable statute of limitations found in Section 315 of the Pennsylvania Workmen’s Compensation Act (the “Act”). 77 P.S. § 602. However, I write separately to put the General Assembly on notice of its failure to amend Section 315 to allow for application of the discovery rule to situations like the one sub judice, and of the harm caused by this blatant omission.

Mr. Clarence Mattern worked for Armco, Inc. (“Armco”) for 34 years as a hand scarier. As a hand scarier, Mr. Mattern removed impurities from pieces of steel with a torch during which “black, sooty stuff’ was produced. Mr. Mattern breathed this by-product for 26 years prior to Armco’s providing him with a respirator. (R.R. pp. 10a-lla).

In 1984, Mr. Mattern became incapable of performing his duties as a hand scarier because of “chronic obstructive lung disease.” However, it was not until June, 1988 that he was *380 informed by his physician that although his disease was related to cigarette smoking, the irritant fumes and dust from his work environment were significant in aggravating the underlying pre-existing condition. Furthermore, the physician also indicated that the fumes and dust caused an acceleration of the disease process. Immediately after learning of the causal connection between his disease and his work for Armco, Mr. Mattern filed a claim petition under the Act.

Ultimately, the Commonwealth Court determined that Mr. Mattern suffered from a compensable “injury” under Section 301(c)(1) of the Act, 77 P.S. § 411(1), and affirmed the Workmen’s Compensation Appeal Board’s (the “Board”) award of benefits. 1 However, today, the Majority is seemingly compelled to deny Mr. Mattern’s award of benefits based on the express terms of the three year statute of limitations relating to a compensable “injury” found in Section 315 of the Act.

Mr. Mattern urges that in light of the humanitarian purpose of the Act, we should apply the discovery rule to the general injury provisions of Section 315. In support of his argument, Mr. Mattern correctly notes that the notice requirement of Section 311 of the Act, 77 P.S. § 631, allows for the application of the discovery rule. 2 However, the Majority points out that the statute of limitations found in Section 315 does not include the language found in Section 311, and, thus, does not allow for the application of the discovery rule except in cases of *381 injury resulting from ionizing radiation. 3 (Maj. Op. at pp. 370-373). Tracing the legislature’s amendments to Sections 311 and 315, the Majority specifically notes that at the time Section 311 was amended to include the language allowing for the application of the discovery rule, Section 315 was not similarly amended. (Maj. Op. at pp. 370-373).

Mr. Mattern also asks us to extend our application of the discovery rule in instances of occupational disease to compensable injuries. However, there is a distinction between latent and insidious diseases under the occupational disease provisions of the Act and latent and insidious work-relatedness where the disability is known.

The acknowledgment by the legislature of distinct occupational diseases, as enumerated in Section 108 of the Act including the catch-all provision found in Section 108(n), 77 P.S. § 27.1(n), recognizes that an employer is engaged in what the legislature deems to be an increased risk activity. Such employer assumes a higher degree of responsibility to its employees for engaging in such endeavors, and the application of the discovery rule to such distinct occupational diseases is clearly consistent with this legislative recognition. The latent and insidious nature of an occupational disease, goes to the disease itself, the work-relatedness is presumed or already established.

Other employers, a fortiori, those not participating in such increased risk activities, are responsible for non-occupational disease, compensable injuries for a finite period of time and have not knowingly accepted this increased risk of liability for injuries to their employees. In the typical compensable injury situation, both the disability and the relationship to the employment is known.

*382 However, the legislature obviously failed to foresee compensable injury cases, like the one sub judice, where the latent and insidious nature of the disability goes not to the injury, but to the work-relatedness of the disability. Unfortunately for the worker, this is a distinction without a difference. An employee, such as Mr. Mattern, who does not suffer from an occupational disease, and, thus, does not benefit from the discovery rule, knows of his disability but does not know of the relatedness of his injury to his employment. However, in these type of injury cases, the employer has not been put on notice and, thus, not had an opportunity to consider the consequences of their liability for this class of injury. Therefore, in my view, a decision to extend the discovery rule to this type of injury, such as the one at bar, requires consideration and action by the General Assembly, rather than by the judiciary.

The resulting harshness of the General Assembly’s apparent oversight when amending Section 315 places an employee, such as Mr. Mattern, in the anomalous position of having to give notice and file a claim even though neither he nor the employer knows that the employee’s injury is work-related. Here, Mr. Mattern’s benefits will be denied even though he filed a petition immediately after he became aware that his injury was work-related. In light of the remedial nature of the Act, and in fairness to claimants who do not suffer from latent and insidious occupational diseases where coverage would be available, but do suffer from work related injuries of a latent and insidious nature, there is no valid reason to grant coverage in the former but deny coverage in the latter. The discovery rule should be applicable in the latter situations in . order to eliminate such absurd and unfair results.

Thus, I respectfully encourage the General Assembly to obviate that which I submit is an unfortunate oversight. A simple amendment to Section 315 of the Act in order to allow for the application of the discovery rule to situations such as the one sub judice, where the work-relatedness of an injury is not known to an employee within the applicable statute of *383 limitations, would not only be consistent with the remedial nature of the Act but would also be just and fair.

. The parties did not challenge the Commonwealth Court's determination that Mr. Mattern failed to establish that he suffered from an occupational disease. Had the Commonwealth Court affirmed the Board's decision and the Referee's finding that Mr. Mattern suffered from an occupational disease pursuant to Sections 301(c)(2) and 108(n) of the Act (77 P.S. § 411(2) and 77 P.S. § 27.1(n) respectively), the discovery rule would have been applicable to this case pursuant to this Court's recent decision in Price v. Workmen’s Compensation Appeal Board (Metallurgical Resources), 533 Pa. 500 , 626 A.2d 114 (1993).

. "... 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...." (emphasis supplied). 77 P.S. § 631.

. "... However, in cases of injury resulting from ionizing radiation in which the nature of the injury or its relationship to the employment is not known to the employe, the time for filing a claim 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....” 77 P.S. § 602.