*1 to “comply at all applicable times” with safety regulations. Additionally, contractors, I do not believe such as Kiew Steel, and High should be excused from obli it/Perini their gation to ensure a work simply they site is safe because physically choose to remain absent work from the site.5 Therefore, as I believe that both High Kiewit/Perini owed a nondelegable duty provide Steel a safe work site for Leonard, Mr. I would reverse the order of the Commonwealth Court and remand this trial case court for a jury to decide whether and High per- negligently Steel Kiewit/Périni duty. formed that joins
Justice dissenting SAYLOR opinion.
v. WORKERS’ COMPENSATION APPEAL BOARD (LNP Engineering), Appellees.
Supreme Pennsylvania. Court of
Argued 2000. Dec. May 22,
Decided 2001. majority The control test used essentially encourages contrac- shrug safety responsibilities by tors to off their abdicating their control view, staying to another and my absent from worksite. more, In contrac- less, encouraged tors should be to become not involved in the well-being employees laboring they hope the site from which Moreover, profit. I inequitable believe it is to allow contractors to contracts, reap the they benefits of specifically federal in which agreed safety responsibilities, to undertake these having any without accountability safety whatsoever when responsibilities are ful- Messina, Jr., filled. See Washington’s John L. Safety Regula- Industrial Workers, tions: The Trend Puget Towards Greater Protection 17 U. for (1994). Sound L.Rev. 341-42 *2 Say- C.J., in which opinion and filed Flaherty, concurred lor, J., joined. J., dissenting opinion. filed
Zappala, *3 Jacobs, for Joan Sell. Philadelphia, S.Marc Holzman, Harrisburg, Carlisle, A. James Tarczy, M. Janet Board. Appeal Compensation for Worker’s Engineering. Meehan, for LNP Jeffrey W. ZAPPALA, CAPPY, C.J., FLAHERTY,
Before SAYLOR, NEWMAN, NIGRO, JJ. CASTILLE, OPINION CAPPY, Justice. Compensation 631, Pennsylvania’s § Workers’
In 77 P.S. (the an “Act”), employee seq., §§ 1 states 77 P.S. et Act injury within 120 a work-related notify employer must granted allocatur § 631. We 77 P.S. days of its occurrence. “discovery rule” to application to consider in this case the substantial evi- period. We conclude 631’s notice Judge’s Compensation supports the Workers’ dence record (“Sell”), (“WCJ”) Sell neither Appellant, that the Joan an know, sustained knew, that she nor had reason prior receiving employment related to her possibly that was Accordingly, we reverse diagnosis to that effect. a medical Court. of the Commonwealth the order production as a worker began In Sell that made Engineering, company the Appellee, quality became a control In plastic pellets. and sold manufacturing technician, from various samples and tested perfor- In specification. they conformed to lines to insure duties, daily and direct was in testing mance of a processing from the fumes and dust with hot *4 contact chemicals, including formaldehyde. number years at fifteen started to smoke was a smoker. She Sell day for some 40 cigarettes per averaging pack one age, smoking to reduce her Ultimately, managed she years. day. a cigarettes about ten throats, tight- 1980’s, coughing, experienced sore
In the Sell nose, year, once a chest, a and about runny ness in energy that her level observed contracted bronchitis. Sell would respiratory decrease and difficulties would increase week, during weekends, the work and that over the she would feel better. Sell told her co-workers that thought that her problems health might job, but, be lacking connected to her proof, she did not thought share this supervisor. with a In April 1992, Sell was diagnosed pneumonia. with double
Sell Friday, went to work on November 1992. On Saturday, she felt tired and ill. While she felt somewhat improved on Sunday, by morning Monday, November 23, 1992, difficulty had great Sell breathing. She went imme- diately to the hospital and was admitted as an inpatient. physicians told her that she had emphysema, a chronic pulmonary obstructive disease that interferes with normal breathing. however, The cause of emphysema, was not discussed.
Upon discharge hospital from the on November Sell did not time, return to LNP Engineering. At this began to search for a physician with knowledge of the chemi- cals and dust in efforts, her work Despite environment. Sell could not find physician, such a and contacted the Ameri- can Lung help. Association for Finally, August, Sell Cohn, located Dr. John R. an allergist. Dr. Cohn treated Sell for emphysema, and told exposure her that to elevated formaldehyde concentrations at work had exacerbated her illness. August 31,1993,
On provided Dr. Cohn a Sell with note that work, stated that she was able to return to but with “cautious exposure to formaldehyde.” On or day, about that same gave Stokes, note Ann personnel the head of of LNP Engineering. time, At the same Sell informed Ms. Stokes that she injured at work and explained how formaldehyde had affected her. also difficulty described the she en- in locating countered a physician with knowledge of the chemi- cal.
Thereafter, Dr. Cohn sent letter to LNP Engineering advising the company eager Sell was work, to return to and could if given do so she was special respirator. *5 her however, give work within to Sell Engineering, declined restrictions, and dismissed her. 9, 1993, by Dr. evaluated Jessica Sell was On November Dr. Herzstein, specialist medicine. occupational a certified aggravated emphysema determined that Sell’s Herzstein she came other chemicals with which formaldehyde and by the Cohn, work, that Sell like Dr. believed into contact at and respiratory protection. job not return to without could 12, 1994, Herzstein’s medical January sent Dr. Sell On compa- the formally notified Engineering, LNP and report to result disabling occupational injury ny that she suffered Engineer- at LNP exposure chemicals work. repetitive of February Compensation of Denial on a Notice ing issued 1994. 21, 1994, for filed a Claim Petition Workers’ March
On Act, 77 injury of the general section Compensation under the irritants, includ- 411(1), alleging exposure to chemical P.S. at employment formaldehyde, in the course of her ing while ob- of chronic aggravation an Engineering LNP caused disease, working was disabled from lung and that structive establishing For of purposes 1992. as of November § requirement of P.S. the notice satisfied Engineering LNP of alleged that she notified further Engineering injury 1993.1 LNP work-related denying allegations. an all of filed Answer Section 631 states: 1. injury employer; Knowledge employer; time notice of notice; exception giving for knowledge employer of the occurrence shall Unless give employ- injury, employe...shall notice thereof to the or unless the days injury, compensation be twenty-one after no shall er within and, given given, unless such notice be due until such notice be twenty days one after occurrence within hundred However, injury, compensation allowed. cases no shall be ionizing any injury resulting or other cause in which from radiation relationship is not or its the rrature giving begin to employe, time notice shall not known to the for knows, employe the exercise run until know, diligence possible of the existence of the its should “injury” in relationship employment. The term this section to his held, hearings during
Several were which the WCJ received Sell, testimony from Engineering’s representative, *6 deposition testimony party’s the each expert. of Dr. Herzstein, expert, Sell’s testified that Sell from two suffered emphysema conditions: an and exacerbation of the disease. explained emphysema Dr. Herzstein degenerative is a many disease that develops years over time after of on assault tissues, lung cigarette smoking. often from She described severe, emphysema Sell’s as moderately any without clear component. reversible Dr. Herzstein testified that the formal- dehyde and other chemical irritants at LNP Engineering to which exposed aggravated emphysema, Sell was triggering the inflammation, airway additional bronchospasm, and a tighten- already of ing airways. Herzstein, narrowed According to Dr. aggravation emphysema was progressive and could also chronic become over time. Dr. waxing Herzstein saw the waning symptoms Sell’s relative to her work schedule supportive as Dr. opinion. opined Herzstein further that Sell to could not return a work environment where she odors, exposed to respiratory fumes and irritants. Dr. Epstein, Paul Engineering’s expert, LNP testified that Sell ailment, only suffered from one emphysema by caused smok- ing, opined could job. her resume For Dr. Epstein, symptom only Sell’s meant pattern that she was tired in of rest by need the time work week ended. 30,1997,
On June the WCJ circulated a decision which he accepted testimony and that of expert her medical persuasive. credible and The WCJ concluded that Sell estab- lished that she an aggravation suffered underlying her lung exposure chronic obstructive disease due to to chemical work irritants at and that the aggravation underlying to her substantially condition to inability contributed her to return to prior work environment. As to notice, the issue of the WCJ found that Sell notified Engineering LNP on August 1993 that her work environ- means, disease, occupational disability resulting cases of from occupational disease. §P.S. 631. Dr. gave company injuiy when she ment caused her to Further, be found Sell’s WCJ Cohn’s note. nor did she did not know 631 since she timely under P.S. from Dr. Cohn receiving note prior to know reason have was affected respiratory ailment 1993 that granted Accordingly, at the WCJ chemicals work. Petition. Sell’s Claim to the appealed the WCJ’s decision Engineering “Board”). (the Board Compensation Appeal
Workers’ notice, concluding that the Board on the issue reversed finding that support did not the WCJ’s substantial evidence reason to know did not have prior August employ- emphysema and relationship between her causal or should instead that “knew Board found ment. The relationship and its known of nature *7 23, hospital- 1992 she was on November when her Thus, reasoned, days 120 from “[Sell] ized.” the Board not did give Engineering] notice. She [LNP that date to 1993, beyond 120-day August of provide notice until therefore, from she was barred statutory period, notice injury.” work receiving compensation for her unpublished In an to Commonwealth Court. appealed the Board. In opinion, panel of the court affirmed divided decision, portions on the same reaching its the court focused testimony dispositive that the Board found record —Sell's of formalde- regarding suspicions her the harmful effects as hyde testimony during that the time she functioned her technician, respiratory would quality symptoms control week, during improve work on the weekends. worsen symptom pattern, which the WCJ includ- Observing that Sell’s salient findings, [his] of his “conflicts with other ed one prior to finding know or have reason to know that Sell did not 31, aggravation 1993 that suffered a work-related illness”, court concluded that underlying respiratory substantial, credited the WCJ competent evidence given “merely the conclusion that Sell should supports Engineering] aggravation of the work-related [LNP 120 from her last underlying emphysema days within 122
day of work in November 1992.” Accordingly, the court held that the record not support evidence did finding the WCJ’s gave .timely notice to Engineering.2 This appeal followed.
Our begins discussion govern the rules that our cases, review. In compensation workers’ a reviewing court adjudication below, must affirm the unless it finds that an committed, error of law was rights constitutional were violated, practice that a procedure or of a Commonwealth agency was not any followed necessary finding of fact supported by substantial 2 evidence of record. Pa. 704; § v. C.S. Volterano Workmen’s Compensation Appeal (Traveler’s Co., al), Pa.335,
Board Ins. et 536 639 A.2d (1994). 455-56
The issue as presented to the timeliness of Sell’s question § notice under 77 P.S. 631 is a of fact. See Katz v. Bulletin, The Evening (1979). 485 Pa. 403 A.2d 519 Where, here, as the Board has taken no additional testimony, Thus, is the WCJ ultimate Id. fact-finder. our present task tois determine whether the record contains substantial in support evidence so, WCJ’s on notice. To do we examine record entire made before the administrative 704; agency. Pa.C.S. Am-Can, Universal Ltd. v. Work ers’ Compensation (Minteer), Pa.480, Board Appeal (2000). A.2d 331 n.2
“Substantial has evidence been defined such rele vant that a *8 evidence reasonable might accept mind as ade quate support to Republic conclusion.” Corp. Steel v. Work men’s Compensation Appeal Pa.1, Board 492 (Shinsky), 421 1060, (1980). A.2d Findings 1062 of fact will be overturned only they arbitrary if capricious. are Id. at 1063. A court on appeal must read the evidence in the light most favorable agreed 2. The dissent with the WCJ that Sell neither knew nor had to reason know of the injury prior work-related nature of 31, 1993, and believed that both the Board majority and the court’s authority denying acted outside their in Sell benefits inasmuch as the provided support record substantial for the WCJ's that Sell's timely. notice was
123 of all below, including the benefit prevailing party the School County Vo-Tech reasonably Lehigh drawn. inferences 539 (Wolfe), Board Compensation Appeal v. Workmen's (1995). in appellate role Pa.322, 800 652 A.2d or reweigh is cases not to the evidence compensation worker’s rather, witnesses; or the the Board of credibility the review whether, upon consideration simply must determine court whole, findings requisite the the as a WCJ’s the evidence Id. in the record. support measure Act is rules, mindful that the we In addition to these remain workers, nature, and must be in to benefit intended remedial purpose. its humanitarian liberally construed to effectuate Furthermore, recognized 652 at 799. we have Wolfe, A.2d provision notice of the not into the that the courts should read Katz, language requires. requirement than its Act a stricter at 403 A.2d us, § 631 that provides statute before
Turning to the injury that a work employer is unaware employee, an whose occurred, within notify employer injury has must occurrence, 77 days compensation. be denied 120 its however, period, notice is 120-day § 631. 631’s P.S. Section Thus, absolute; in “discovery § 631 includes the rule.” not tolls a statute discovery same rule way case, Medical malpractice Hayward v. limitations a medical 530 Pa. 608 A.2d County, Beaver Center of (1992), period begin § 631 does not 120-day injury or its causal run in cases in which the nature of the known, employee until an knows or connection to work is know of has reason to by diligence, of reasonable exercise to her injury possible relationship employment. its § 631. P.S. discovery § view, incorporating rule
In our who employees it that Pennsylvania legislature saw to readily immediately an is not ascertain- suffer employees Act as rights have the same under the those able is, they long proceed as sustain an who A.2d For at 1042. diligence. Hayward, See *9 124' rule,
purposes applying discovery the standard of reasonable is a diligence familiar one. We have stated that “ just that, diligence ‘reasonable is a reasonable effort to discover the of an cause under the facts and circum- ”, present stances in the case’ v. GAF Corp., Cochran 542 Pa. (1995) (citation omitted), 666 A.2d and have emphasized though diligence that objec- even is an tive, subjective standard, than sufficiently rather it is flexible to take into capacities people account the different have to deal with they the circumstances confront. Id. specific §
The that question discovery 631’s presents rule appeal this is straightforward: Does the substantial evidence support record the WCJ’s finding prior receiving that to Dr. 31, 1993, Cohn’s medical diagnosis August Sell neither knew nor had to know reason that sustained an she that possibly was to connected her work? WCJ found: 15.c. When handed her doctor’s on or [Sell]' note about August 31,1993, gave also Engineering] [LNP notice to of her exposure belief that the to the work environment had aggravated or caused her problems. health The under- signed gave timely by finds that notice August [Sell] know, § 1993 under [77 631]...since P.S. she did not nor did know, prior have reason to that date respiratory daily repetitive ailment affected exposure fumes, chemical odors dust while in the scope of Engineering]. [LNP (WCJ’s 7) decision at
Not surprisingly, parties’ respective answers to this question Sell, similarly straightforward. course, are argues that the substantial evidence sustains the WCJ’s until diagnosis, she received Dr. Cohn’s medical she was not chargeable 631 with § under actual or knowledge constructive injury. Engineering work-related argues that it not, does would us conclude 631’s period began than, before, no run later if not well Novem- 23, 1992, ber rendering notice on untimely. record, sustain we
Having thoroughly reviewed *10 for context of nature and finding. The WCJ’s to our decision. central benefits is sought which Sell or an accident was not the result emphysema aggravated immediately have been of which she would event some other disease, a and slow Instead, it was the outcome aware. smoking, cigarette due to emphysema, process. silent time.3 The developed over incrementally and itself manifested of Sell’s work the result emphysema, of the exacerbation It caused Sell environment, degrees. also revealed itself the under characterized like those that symptoms experience suffering from developing was While Sell lying disease. disease, also aggravation of the and the emphysema Thus, the or pneumonia. of bronchitis bouts succumbed by Sell’s taken relating to the course evidence substantial determination ample support for the WCJ’s provides disease consultation, neither Sell of medical that without the benefit respi known, among all her that from knew, nor should have Moreover, difficulties, injury. compensable there was ratory not have that Sell should finding reflects the view the WCJ’s through many symptoms unassisted sort expected to been re the evidence herself. Based on essentially diagnose only can dealing, we which was injury with Sell garding the agree.
Indeed,
prior
of our
decisions
in one
we took
perspective
the basis of claimed
regal’d to disease that forms
assessing its
employee
that an
encounters
the obstacles
v.
finding.
In Price Work-
development validates WCJ’s
evidence does
opportunity to
that the substantial
take this
observe
3. We
support,
findings.
is
There
no evidence
support
of the WCJ's
not
one
emphysema] to the fact that
finding
[her
"had
that Sell
related
show to what cause
cigarettes.” The record does not
had smoked
WCJ,
During
hearings
emphysema.
before
attributed
did she
emphysema, nor
to ascribe a cause to her
was not asked
bearing
Regardless,
finding
on the case. As
this
has no
one.
volunteer
any
emphysema,
aggravation of ihe
benefits was for the
Sell's claim for
is
understanding
emphysema’s
irrele-
finding
cause
to Sell’s
Court,
however,
note,
Commonwealth
Board and the
that the
vant. We
tribunals,
respective opinions.
Both
in- their
set forth this
therefore,
knowledge
the record does
credited Sell with certain
show she had.
Compensation
men’s
Appeal
Resources,
Board (Metallurgical
al.),
Pa.500,
et
(1993),
When in read its the record establishes that at the time emphysema diagnosed, was she was layperson a thought who formaldehyde that the in her work environment was harmful. view, Aware that she an held uninformed Sell sought out an expert who could tell her whether was correct to think so. In the exercise of diligence, persistence, Cohn, notable physi- located Dr. a cian who suspicions confirmed her about formaldehyde and 31,1993 informed August her on that exposure to the chemical found, at it was As WCJ emphysema. exacerbated hand, had the that Sell diagnosis awith medical point, this would, in requires. To hold otherwise knowledge that supported view, disregard the substantial evidence our principles finding, the well-settled and violate WCJ’s a of the Act and application remedially-minded mandate a language. § 631’s interpretation of strict 120-day Thus, uphold the WCJ’s we a until received begin §of 631 did not run period her work-related diagnosis of follows, that necessarily finding, which as well as the timely. Engineering date to on that Sell’s notice and order the Com- opinion we Accordingly, reverse 30, 1997 Court, reinstate the WCJ’s June monwealth Sell’s Claim Petition. granting order concurring opinion in which FLAHERTY files Justice joins. Justice SAYLOR opinion. dissenting files a ZAPPALA
Justice FLAHERTY, Justice, Concurring. Chief Indeed, by Mr. Justice dissent authored as stated seemingly require claimant majority “... would Zappala, absolutely relationship between an know the causal On join ...” I cannot in that view. its and work relatedness *12 the did not know of suspected, but this record the claimant the symptoms and between her possible causal connection a is less Suspicion possible causality of environment. work clearly it. demonstrates knowledge of The record than her diligent claimant to ascertain whether reasonably by effort foundation, in a eventuating medical suspicion thus, I, suspicion confirmation result, in as entirely but not the rationale in the concur majority. the expressed by concurring opinion. joins this
Justice SAYLOR ZAPPALA, Justice, Dissenting.
DISSENTING OPINION Sell, knew, it is clear that Appellant, Because Joan or should known, of possible the existence of work-related injury on November and failed to timely notify her employer days within required by thereof Section 311 Act, of Compensation the Workers’ 77 P.S. I dissent majority’s contrary. from the to the decision noted, As Act provides Section 311 the that a claimant notify must his or her employer injury of work-related days occurrence, within 120 of its unless the employer is already that aware has timely occurred. If notice is provided, the claimant receiving compensa- is barred from tion. The time for giving begin notice does not to run until knows, the claimant byor diligence exercise know, of possible should the existence of and its relationship employment. to his or her
Here, Appellant WCJ found from a suffered chron- disease, lung ic emphysema, obstructive was aggravated which irritants, by exposure to chemical particularly formalde- hyde, Thus, while at work. issue notice turns on when Appellant or reasonably knew should have known that underlying respiratory daily ailment affected fumes, repetitive exposure to chemical odors dust The workplace. following WCJ made the relevant regard: this credibly
6. Claimant testified as a result of continu- dust, daily exposure ous fumes and odors from the manufacturing process, developed difficulty with breath- ing. developed She shortness of wheezing, breath and along with symptoms, including other dizziness and nausea. A pattern becoming ill these increasingly symptoms be as she continued to exposed these chemicals through- out the work week was demonstrated. Claimant testified weekend, her symptoms improve would over the while being away exposiores. pattern repeat would from with the start a new workweek. Claimant itself farther *13 when she started problems had no health that she testified was No evidence in 1979. 'working with the Defendant contrary. to presented added). (emphasis at 3
WCJ’s decision that on November of record reveals Other evidence immediately difficulty breathing great had Appellant in-patient. as an hospital, she admitted where was went to not return to hospital, did discharge Appellant from the Upon Thereafter, physician for a Appellant searched work. environment. and dust in her work knowledge of the chemicals because Lung the American Association contacted She chemicals, discuss find a doctor that would even she “couldn’t N.T., dust, at 19-20. She work environment.” [her] 9/7/94 might be thought her work- problems that she told co-workers fact supervisor of this related, although did not inform her she 33-34, 125 any Id. at A.2d proof.” “didn’t because she suspi- Appellant was able confirm Finally, 365. when work-related, through physician’s injury was cions that her 31, 1993, Appellee’s diagnosis August she told head following: department the personnel formaldehyde explained I that —I to her about the told her me, I knew that that’s what how it had affected and how get I a doctor that knew the attack. But caused don’t seem to know formaldehyde. Doctor’s [sic] about about that. added). 21-22,125 (emphasis
Id. A.2d 365 at view, of record does not my substantial evidence In did not know of conclusion that Claimant support the WCJ’s relationship until 31, 1993, diagnosis to this received a medical effect. when she relationship between Clearly, Appellant possible knew the work experiencing and the environ- symptoms on November 1992. after she had the acute attack ment this Thereafter, confirmation of continually sought confirming diagnosis That she did have a medical fact. day purposes is not for the 120 knowledge significant majority would seem- requirement Section *14 ingly require a claimant to know absolutely rela- the causal tionship injury'and between an its work-relatedness before day This, period however, of 311 is triggered. Section is not what the language provision To con- states. trary, provision states that the time begins to run from “knows, an employee when the exercise diligence know, should the existence its possible relationship employment.” to his
Here, Appellant knew of the existence possible relationship its as November 23, 1992, was required to inform her employer of her injury within 120 days Appellant thereof. would then have up years, pursuant to three 77 P.S. to file a petition claim setting forth specific allegations regarding injury. Appellant Since give failed to timely injury, I would affirm the Commonwealth Court’s decision and order.
771 A.2d Duttry, Cloma E. Appellees, v. DUTTRY and Alvin PATTERSON, M.D., Lewis T. Surgical Patterson Associates Polyclinic Center, Appellants. Medical
Supreme of Pennsylvania. Court
Argued Dec. 2000. May 22, Decided