85 Pa. Commw. 156 | Pa. Commw. Ct. | 1984
Opinion by
Before this Court is an appeal by the Commonwealth of Pennsylvania from a decision and order of the Court of Common Pleas of Delaware County holding the Commonwealth solely liable for disability benefits awarded to Louis <S. Blank (Claimant). We reverse.
Claimant was employed by Penn Steel Castings Co. (Employer) for a period of thirty-four years ending in 1968. Subsequent to that employment, he worked as a security guard for the County of Delaware from March of 1971 until May of 1977 when a heart attack caused him to cease all work. While working for Employer, Penn Steel Castings Co., Claimant was exposed to a silica dust hazard. This exposure resulted in Claimant becoming totally and permanently disabled by silicosis on April 22, 1977. Claimant subsequently filed a petition for disability compensation under Section 301 (i) of The Pennsylvania Occupational Disease Act (ODA), Act of June 21, 1939, P.L. 566, as amended, 77 P.S. §1401 (i). Following a referee’s hearing, the Claimant’s petition was granted and the Commonwealth alone was directed to pay Claimant compensation at the rate of $100 per month commencing with his date of disability. The referee failed to make a finding, however, as to when the
The issue which confronts us has been dealt with in several conflicting decisions by various courts of common pleas, but is one of first impression with our Court. Specifically, we must resolve the question of whether the language of Section 301 (i) of the ODA making the Commonwealth solely responsible for compensating sufferers from silicosis and other occupation related respiratory diseases, is, as asserted by ■the Commonwealth, applicable only to cases where the victims’ last exposure was prior to December 1, 1965, or whether the cut-off date for the Commonwealth’s sole liability is November 28, 1969, the date of a subsequent amendment.
'Subsection (i) of Section 301 of the ODA was added to Section 301 by Section 4 of the Act of Novem
(i) Notwithstanding any other provisions of this act, compensation for -silicosis, -anthraeosilicosis, coal worker’s pneumoconiosis, and asbestosis shall be paid for each month beginning with the month this amending act becomes effective, or beginning with the first month of disability, whichever -occurs later, at the rate of seventy-five dollars ($75) per month, to every employe totally disabled thereby as a result of exposure thereto, who has not theretofore been compensated because his claim was barred by any of the time limitations prescribed by this act, and shall continue during the period of such total disability. No compensation under this section shall be paid to any employe who has not been exposed to a silica, coal, or asbestos hazard within the Commonwealth of Pennsylvania for a period of two years. All such compensation to those tvhose last exposure precedes the effective date of this amending act shall he paid hy the Commonwealth. Employes whose last exposure follows the effective date of this amending act and who become entitled to the compensation provided by this subsection shall be paid as provided by this act. (Emphasis added.)
Subsection (i) was amended by Section 1 of the Act of November 28,1969, P.L. 312, effective immediately, to read as it now reads, in pertinent part,
(i) Notwithstanding any other provisions of this act, compensation for silicosis, anthracosilioosis, coal worker’s pneumoconiosis, and asbestosis shall be paid for each month beginning with the month this amending act becomes effective, or beginning with the first month of*160 disability, whichever occurs later, at the rate of seventy-five dollars ($75) per month, to every employe totally disabled thereby as a result of exposure thereto, who has not theretofore been compensated because his claim was barred by any of the time limitations prescribed by this act, and shall continue during the period of such total disability. No compensation under this section shall be paid to any employe who has not been exposed to a silica, coal, or asbestos hazard within the Commonwealth of Pennsylvania for a period of two years. Subsequent t.o the effective date of this amending act of 1969, it shall be necessary to be a resident of Pennsylvania in order to qualify for compensation, but not to continue receiving the same after qualification. All such compensation to those whose last exposure precedes the effective date of this amending act shall be paid by the Commonwealth. Employes whose last exposure follows the effective date of this amending act and who become entitled to the compensation provided by this subsection shall be paid as provided by this act. (Emphasis on the 1969 amendment.)
In the case at bar, both the Board and the court of common pleas have construed the language of the 1969 amendment, which interjected a residency requirement into Section 301 (i), (specifically the language of the amendment stating “this amending act of 1969”) to also operate to amend the date before which a ‘ Oast exposure” would operate to make the Commonwealth solely liable for compensation; in other words, an extension from December of 1965 until November 28, 1969. Because Claimant’s last exposure to a silica hazard occurred in 1968, .this construction resulted in a determination that only the Commonwealth was responsible for compensating Claimant.
Having found that the Commonwealth is not the sole party liable for Claimant’s compensation, we must next ascertain what is the correct apportionment thereof. As noted above, Section 301 (i) provides for compensation to parties whose last exposure was subsequent to December 1, 1965, “as provided by this act.” 77 P.S. §1401 (i). Aside from the language of Section 301 (i) here at issue, the only other sections of the ODA setting forth the manner in which compensation awarded under that act shall be paid are Sections
When compensation is awarded because of disability or death caused by silicosis, anthracosilicosis, coal worker’s pneumoconiosis, asbestosis, or any other occupational disease which developed to the point of disablement only after an exposure of five or more years, the compensation for disability or death due to such disease shall, except as otherwise provided in subsec*163 tion (g) of section 301, be paid jointly by the employer and the Commonwealth and the employer shall be liable for sixty per centum of the compensation due and the Commonwealth forty per centum.
The instant matter clearly satisfies the criteria enunciated by Section 308(a) and it is this section which must control the apportionment of Claimant’s award. Accordingly, in conjunction with reversing the order of the Court of Common Pleas of Delaware County denying the appeal of the Commonwealth, we direct that sixty per cent of the compensation awarded Claimant be paid by Employer with the remaining forty per cent to be paid by the Commonwealth.
Order
Now, September 14,1984, the decision and order of the Court of Common Pleas of Delaware County in the above captioned matter, No. 81-07623, is hereby reversed and it is directed that the payment of disability benefits awarded to Louis S. Blank be apportioned in the manner directed by the opinion above.
See A. Banbieri, Pennsylvania Workmen’s Compensation and Occupational Disease, Section 6.24(4).
Section 301(g) of the ODA reads, in pertinent part:
The employer liable for the compensation provided by this article shall be the employer in whose employment the employe was last exposed to the hazard of the occupational disease claimed, regardless of the length of time of such last exposure: Provided, That when a claimant alleges that disability or death was due to silicosis, anthracosilicosis, coal worker’s pneumoconiosis, asbestosis or any other occupational disease which developed to .the point of disablement only after an exposure of five or more years, the only employer liable shall be the last employer in whose employment the employe was last exposed to the hazard of such occupational disease during a period of six months or more: And provided further, That in those cases where disability or death is not conclusively proven to be the result of such last exposure, all compensation shall be paid by the Commonwealth.