42 A.2d 280 | Pa. Super. Ct. | 1945
Argued March 5, 1945.
In this workmen's compensation case the claim petitions were filed under the provisions of the Pennsylvania Occupational Disease Act of June 21, 1939, P.L. 566,
Edmund Roschak, the claimant-decedent, was employed by the defendant, Vulcan Iron Works, from April 7, 1936, to April 2, 1941, as a chipper in the foundry. His occupation required him to work on steel castings, chipping off the silica sand and cutting *229 off the scrapings. The foundry was always very dusty from sand blasting, grinding and chipping, and the floor was always covered with sand. On April 2, 1941, he discontinued work because of a cold. Six days later, April 8, 1941, after having been examined by Dr. Kavanaugh, he sent a written notice to the defendant's superintendent stating that he would ". . . . . . be absent from (his) work for an indefinite period on account of a certain illness." Enclosed with this notice was a note from Dr. Kavanaugh certifying: "that Edmund Roschak is ill and under my care since April 1, 1941. He will be unable to work until a future date." At Dr. Kavanaugh's direction, Dr. Boyle took X-rays and in his report of March 29, 1941, indicated that Roschak had an advanced pulmonary tuberculosis. On May 10, 1941, he was admitted to the Mount Alto Sanitarium where he remained until December 12, 1941. On admission to the Sanitarium, the diagnosis after X-ray was a far advanced pulmonary tuberculosis. It was not until the early part of November, 1941, that Dr. Pantaloni, his attending physician at the Sanitarium, told him that he had silicosis. On November 12, 1941, he filed his claim petition alleging total disability as a result of anthraco-silicosis. An X-ray of November 24, 1941, indicated a third stage of pneumoconiosis, but at that time there was no active tuberculosis. Dr. Bixby examined him on February 19, 1942, and diagnosed his condition as anthraco-silicosis with an associated pulmonary tuberculosis. Roschak died on March 5, 1942, survived by his widow and a son two years old. His widow filed her claim petition on April 27, 1942, alleging death as a primary result of anthraco-silicosis. It was agreed that both petitions be tried at the same time and the testimony taken applies to both.
The Occupational Disease Act of 1939, P.L. 566, Sec. 301(d) and (e),
"(d) Compensation for silicosis or anthraco-silicosis, and asbestosis, shall be paid only when it is shown that *230 the employe has had an aggregate employment of at least four years in the Commonwealth of Pennsylvania, during a period of eight years next preceding the date of disability, in an occupation having a silica or asbestos hazard.
"(e) Compensation shall not be payable for partial disability due to silicosis, anthraco-silicosis, or asbestosis. Compensation shall be payable, as otherwise provided in this act, for total disability or death caused solely (as definitely distinguished from a contributory or accelerating cause) by silicosis, anthraco-silicosis, or asbestosis, or by silicosis, anthraco-silicosis, or asbestosis, when accompanied by active pulmonary tuberculosis."
The decedent was employed by the defendant for almost five years in an occupation having a silica hazard. The referee found as a fact that his disability and death were "predominantly" caused by anthraco-silicosis. There is ample competent evidence in the record to sustain this finding. Dr. Bixby testified: "Q. Would you say from this picture that anthraco-silicosis was the prime factor in this man's disability and death? A. I believe it played a very important part in his death. I believe by the time I saw him in February, 1942, that the tuberculosis, was, played a very small part in his disability. Q. What was playing the principal or major part? A. My belief is that the anthraco-silicosis was the principal cause of his disability." And again Dr. Bixby testified: "Q. Indeed, you did know something about this case; which of the two elements in your opinion was the predominant factor, the tuberculosis or the anthra-silicosis? A. In my opinion when I saw him in February I believed that the anthra-silicosis was the predominant factor."
"The Occupational Disease Compensation Acts are even more limited than the Workmen's Compensation Acts as respects disability or death resulting from silicosis, for both the Act of 1937 and the Act of 1939 agree *231
in the provision that in order to be compensable the total disability or death must be caused `primarily' or `solely' — `as definitely distinguished from a contributory or accelerating cause' — by silicosis.": Stauffer v. Hubley Mfg. Co.,
The question raised on this appeal is whether or not notice of disability was given within the proper time. This precise question has not heretofore been decided by the appellate courts of this state, although there are several decisions interpreting the corresponding sections of the Workmen's Compensation Act. The Workmen's Compensation Act of 1915, P.L. 736, Sec. 311, as amended, 1927 P.L. 186, Sec. 3, 1937 P.L. 1552, Sec. 1, 1939 P.L. 520, Sec. 1,
The parallel section in the Occupational Disease Act, supra, Sec. 311,
The difference in these two sections lies in the point of time from whence the period of ninety days is computed. In the Workmen's Compensation Act, the time is computed from the date of the "accident" and "injury"; in the Occupational Disease Act, from the date the "disability begins" and "the beginning of the disability." In the former, the time which starts the running of the statute of limitations is easily fixed; in the latter it is much more difficult. On this subject, Corpus Juris says: "An occupational disease is not an injury by accident, and an injury by accident is not an occupational disease; an accident is distinguished from an occupational disease in that the former rises from a definite event, the time and place of which can be fixed, while the latter develops gradually over a long period of time": 71 C.J. 600, Sec. 357. An accident or injury is a definite happening or occurrence or event of which the employee is almost invariably aware. An occupational disease is latent and insidious and the resultant disability is often difficult to determine. It is apparent, then, that the difference between the relevant provisions of the two acts is fundamental and basic. In construing the Occupational Disease Act, the problem devolves to one of ascertaining the point of time at which the disability begins.
The difficulty in ascertaining the exact point of time, at which the occupational disease causes the disability *233 to begin, becomes obvious from a review of the facts in the instant case. The decedent left work because of a cold. He immediately placed himself under the care of a physician. Within a week, he notified his employer that he would be absent on account of a "certain" illness. He submitted himself for examination and to have X-rays taken. On advice of his physician he entered a sanatarium where he remained for over six months. The first suggestion of an occupational disease was made to him seven months after he discontinued work. The referee made the following finding of fact: "17. The decedent was not aware of the fact that he had silicosis until about November or December of 1941. We further find that at the time the written notice of April 8, 1941, was given to the defendant's superintendent, the decedent was not aware of the fact that he was suffering from silicosis." As soon as he learned of his true condition, he filed his claim petition. What more could he have possibly done? He was completely dependent upon the advice of his physicians. The symptoms which manifested themselves were not peculiar to the disease of silicosis. His condition was complicated by another disease with like symptoms which delayed the true diagnosis. The decedent had no knowledge of his true condition until he was properly diagnosed. And immediately upon learning of the facts, he acted in accordance with the law.
The case of Bremner et al. v. Marc Eidlitz Son, Inc. et al.,
The same question was raised in the case of Blassingame et al.v. Southern Asbestos Co. et al.,
The Pennsylvania Occupational Disease Act, supra, should be given the same liberal interpretation that has been given the Workmen's Compensation Act. The provisions of the Workmen's Compensation Act pertaining to the question of notice of injury are almost identical with the provisions of Section 311 of the Occupational Disease Act, supra. In construing the parallel provisions of the Workmen's Compensation Act. we said in Uditskyv. Krakovitz,
The rule is universally accepted that statutes like the one under consideration are to be liberally construed in favor of the employee. In other jurisdictions where the same liberal rules of construction have been applied, it has been held: "It cannot have been the intention of the Legislature in this kind of an act to require the impossible. It was manifestly impossible for the employee in this case to tell the employer anything about the disablement which the employee himself did not know. . . . . . An accidental injury is a thing which happens suddenly and occupies a definite point of time. An occupational disease, on the other hand, is generally a gradual, insidious and progressive injury which eventually produces a disability. In cases like the one at bar it is only when the employee is forced to discontinue his employment that there exists a point in time from which it would be possible to begin the tolling of a period of limitation. Madison v. Wedron Silica Co.,
The cases relied on by the lower court in its opinion and order reversing the action of the board are proper authority requiring strict compliance with the provisions of the Workmen's Compensation Act as to notice in respect of accident or injury. But the weight of authority is clearly on the side of a more liberal interpretation of the corresponding provisions of the Occupational Disease Act as to the date when the statute begins to run in the case of disability resulting from an occupational disease. Were we to rule otherwise, we would be obliged to hold that it was the legislative intent "to require the impossible."
The judgment is reversed and the order of the board reinstated. *239