Summary
holding that fatal claim benefits may be awarded after the 300-week limitation period expires in cases where the decedent was previously awarded disability benefits for the same or related injury on a lifetime claim petition filed within the limitation period
Summary of this case from Wolf v. Workers' Comp. Appeal BoardOpinion
Argued November 16, 1987.
January 14, 1988.
Workers' compensation — The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566 — Firefighter — Time of death — Payment of disability benefits — Cause of death — Legislative intent — Notice — Liability of Commonwealth.
1. Provisions of The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, requiring that a compensable disability or death occur within four years of the employe's last employment in the occupation or industry where the disease was contracted, do not require that a death claim be denied when death did not result within four years of such employment when death was simply the end result of a disability which was acknowledged and for which benefits were continuously paid from the date within four years of such employment. [540-1]
2. Provisions of The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, requiring that a compensable disability or death occur within four years of the employe's last employment in the occupation or industry where the disease was contracted, are for the purpose of insuring that timely notice of disability or death be given and do not preclude the recovery of death benefits when disability benefits for the same condition as caused death had been paid for thirteen years. [541-2]
3. When the Commonwealth is the party responsible for paying occupational disease benefits during the lifetime of a disabled claimant, the Commonwealth remains liable for death benefits payable when the claimant dies as a result of the compensable condition, and a claim for death benefits in such case is not a separate cause of action wherein the liability of the Commonwealth would be limited. [543]
Argued November 16, 1987, before Judges CRAIG, COLINS, and Senior Judge BARBIERI, sitting as a panel of three.
Appeal, No. 3653 C.D. 1986, from the Order of the Workmen's Compensation Appeal Board in the case of Michael P. Duffy (Dec'd) Mary Duffy (Widow) v. City of Scranton/Fire Dept. and Commonwealth of Pennsylvania, Bureau of Workers' Compensation, No. 86-Civ. 2692.
Fatal claim petition filed to the Department of Labor and Industry for workmen's compensation death benefits. Benefits awarded. Commonwealth and employer appealed to the Workmen's Compensation Appeal Board. Award affirmed. Commonwealth and employer appealed to the Court of Common Pleas of Lackawanna County. Appeal affirmed. COTTONE, J. Commonwealth and employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Richard T. Kelley, with him, Wanda A. Whare, for appellant.
George W. Teets, for appellee, Mary Duffy.
Daniel A. Miscavige, with him, Frederick H. Hobbs, for appellee, City of Scranton/Fire Dept.
The Bureau of Workers' Compensation (Bureau), acting for the Commonwealth of Pennsylvania, and the City of Scranton (Employer), appeal here the order of the Court of Common Pleas of Lackawanna County which affirmed the grant of widow's benefits to Mary Duffy (Claimant) by the Workmen's Compensation Appeal Board (Board) under The Pennsylvania Occupational Disease Act (Act). We shall affirm.
The liability to pay benefits here is based on the provisions in Section 108(o) of The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P. S. § 1208(o), under which the Commonwealth is responsible to pay the full amount of compensation due for disability or death incurred by firemen under specified circumstances.
Id.
Claimant's husband, Michael P. Duffy, had been employed as a fire fighter by the City of Scranton for twenty-one years. As a result of exposures during the performance of his duties, he became totally disabled on November 2, 1971 from coronary insufficiency. During his lifetime he filed for and was awarded disability benefits payable by the Commonwealth under Section 108(o) of the Act which he received until his death on December 6, 1984, from coronary insufficiency. His widow, Mary Duffy, Claimant herein, filed a fatal claim petition seeking compensation and funeral benefits under Sections 301(a) and 307.2 of the Act for the disease death under Section 108(o). The referee concluded that Decedent's death was the result of the occupational disease incurred in the hazardous employment as a fire fighter with the City of Scranton and ordered the Commonwealth to pay weekly compensation benefits and funeral expenses.
Id. The referee found:
2. On November 2, 1971, Michael P. Duffy, now deceased, was totally disabled as a result of coronary insufficiency due to arteriosclerotic coronary heart disease, due to exposure to an occupational disease hazard, resulting after four (4) or more years of service as a salaried fireman, caused by extreme overexertion in times of stress, strain or danger, and exposed to heat, fumes, smoke and gases arising directly out of the claimant's employment with the City of Scranton, defendant.
77 P. S. § 1401(a) and § 1407.2, respectively.
See Footnote No. 1 above.
On appeal to this Court, the Bureau contends as it did before the trial court and the Board, that the death claim herein is time barred under Section 301(c) of the Act. The pertinent portion of that section reads:
Whenever compensable disability or death is mentioned as a cause for compensation under this Act, it shall mean only compensable disability or death occurring within four years after the date of his last employment in such occupation or industry.
Although there was compensable disability, it is argued, the death did not occur within four years after the date of Decedent's "last employment in such occupation or industry" and that, therefore, death benefits must be denied. We disagree and hold that the Board and trial court correctly accepted as controlling the long established and accepted ruling in Toffalori v. Donatelli Granite Co., 157 Pa. Super. 311, 43 A.2d 584 (1945).
In Toffalori, as here, liability for the fireman's disability under Section 108(o) had been accepted and payment of benefits therefor made until the death which occurred after the period provided in Section 301(c) had elapsed. The Court held that the controlling words in the applicable portion of Section 301(c) were "[w]henever compensable disability or death is . . . cause for compensation under this act. . . ." Thus, having established timely and compensable exposure, and reading "disability or death" disjunctively, the requirements of the Act were met and the death benefits were merely a continuum of the previously admitted or established liability to pay compensation. It follows, of course, that if the facts were different and the "cause for compensation" were the death, no compensation having been paid for disability during the decedent's lifetime, the claim would be time barred. We have so held, Kilvady v. United States Steel Corporation, 90 Pa. Commw. 586, 496 A.2d 116 (1985), and our Supreme Court has recognized the Toffalori exception. Kujawa v. Latrobe Brewing Company, 454 Pa. 165, 169, n. 5, 312 A.2d 411, 413, n. 5 (1973). We decline to honor the Commonwealth's request that we "overrule" or distinguish Toffalori. We think the Toffalori exception is a wise one. The purpose of Section 301(c) of the Act is to provide timely notice of disability or death. Thus, the Bureau cannot assert a failure of notice in the present case where it had been paying total disability benefits for the same exposure for thirteen years.
77 P. S. § 1401(c).
We believe that the Legislature recognized the validity and wisdom of the Toffalori exception in enacting Section 301(c)(2) of the 1972 occupation disease provisions of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended 77 P. S. § 411. The relevant provisions of that section read:
Provided, That whenever 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 after the last date of employment in an occupation or industry to which he was exposed to hazards of such disease: And provided further, That if the employe's compensable disability has occurred within such period, his subsequent death as a result of the disease shall likewise be compensable. (Emphasis added.)
We come now to the Commonwealth's alternative contention that while the provision in Section 108(o) requires the Commonwealth to "pay the full amount of compensation for disability under this clause," the death that results from that disability is a separate cause of action and, as such, the Commonwealth's liability should be limited to "forty per centum," as provided in Section 308(a) of the Act. Again we must disagree.
77 P. S. § 1408(a).
As Judge COTTONE stated in his opinion for the Lackawanna trial court in this case:
We are not persuaded by the Commonwealth's argument that section 308(a), which apportions liability between the employer and the Commonwealth, should control the payment of these benefits. Rather we are in firm agreement with the Appeal Board that these benefits are, indeed, payable by the Commonwealth as a continuim [sic] of the lifetime claim under Section 108(o). . . .
Again, we cannot but help agree with the Appeal Board that the Commonwealth, who was the responsible party for lifetime benefits for some thirteen (13) years under decedent's claim, is also the responsible party for survivor benefits stemming from that same claim.
We hold, therefore, that where "disability" is the "cause for compensation" under Section 301(c) of the Act, as in this case, the death from that same exposure and disability does not result in the reduction of the Commonwealth's full liability under Section 108(o) to forty percent of that existing liability.
For the reasons stated, we will affirm.
ORDER
NOW, January 14, 1988, the order of the Court of Common Pleas of Lackawanna County at No. 86-CIV. 2692, dated November 24, 1986, is hereby affirmed.