Cable v. Workmen's Compensation Appeal Board

649 A.2d 480, 168 Pa. Commw. 201, 1994 Pa. Commw. LEXIS 595
CourtCommonwealth Court of Pennsylvania
DecidedOctober 31, 1994
StatusPublished
Cited by2 cases

This text of 649 A.2d 480 (Cable v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cable v. Workmen's Compensation Appeal Board, 649 A.2d 480, 168 Pa. Commw. 201, 1994 Pa. Commw. LEXIS 595 (Pa. Ct. App. 1994).

Opinions

RODGERS, Senior Judge.

Kenneth Cable (Claimant) petitions for review of an order of the Workmen’s Compensation Appeal Board (Board) which reversed a referee’s determination that Claimant’s occupational disease was discovered within three hundred weeks of his last date of employment with Gulf Oil/Chevron USA, Inc. (Employer). We reverse.

The following facts are not disputed on appeal. Claimant was employed with Employer from July, 1970 until March 30, 1983. For the first two to three years of his employment, Claimant’s work involved cleaning the inside of a unit which manufactured benzene and coumene. The unit was cleaned over a two week period twice a year. For the remainder of his employment, Claimant worked as a pipefitter and spent approximately thirty percent of his time working on and around the same unit.

[481]*481In December of 1979, Claimant was injured by an explosion on Employer’s premises. Claimant was unable to return to work due to these injuries, except for a three month period in 1981. Employer terminated Claimant’s employment effective March 30, 1983.

In July, 1988, Claimant was diagnosed as suffering from bladder cancer and was informed by his doctor that his disease resulted from his exposure to benzene and cou-mene. Claimant gave timely notice to Employer but received no response. On April 14, 1989, Claimant filed a claim petition, to which Employer filed a timely answer denying the allegations against it.

Following hearings, the referee granted Claimant’s petition, based on findings that Claimant suffered from an occupational disease and that Claimant established the causal relationship between his employment and the disease with reasonable medical certainty. The referee further found that Claimant’s occupational disease was discovered within three hundred weeks of Claimant’s last date of employment. The pertinent findings made by the referee are as follows:

1. Kenneth Cable, an adult individual, was employed by Gulf Oil Corporation for approximately 13 years, commencing in 1970, and terminating on March 30, 1983.
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6. Claimant’s employment status was reduced to disability as a result of injuries which he sustained in a prior work-related accident on December 7, 1979, from which he suffered a fracture of the right tibia and fibula and a crushed patella in the left knee and serious injury to both legs.
7. Claimant received notice of the termination of his employment effective March 30, 1983, from Gulf Oil Corporation by a letter from Gulf, dated March 8, 1983.
8. In July 1988, claimant was informed by Dr. Nicholai Zelneronok that he was diagnosed as suffering from bladder ■ cancer and that the tumors present in his bladder would have to be immediately removed.
9. On July 21, 1988, Dr. Zelneronok performed resection of the bladder tumors, yielding 31 grams of tissue. Dr. Zelnero-nok confirmed with reasonable medical certainty, that the bladder tumors were the result of Mr. Cable’s exposure to the carcinogens, cumene [sic] and benzene, during the course of his employment at defendant corporation.
10. The continuous exposure to such carcinogens resulted during the course of the claimant’s employment with defendant, Gulf Oil Corporation, since on or about July, 1970, through March 30, 1983.
11. As soon as claimant became aware that a causal connection between the bladder cancer and his employment existed, claimant notified his employer by telephone and by follow-up letter in early September, 1988.
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17. Timely notice was provided to defendant corporation pursuant to the statutory requirement of 300 weeks following the date of last employment, March 30, 1983.

(Reproduced Record, pp. 216a-217a.) Following these findings, in his Conclusion of Law 2, the referee states:

2. The Occupational Disease suffered by Kenneth Cable was discovered within 300 weeks after the last date of employment with defendant, Gulf Oil Corporation.

(R.R. p. 218a.)

Employer appealed to the Board, arguing that the referee erred in using the Claimant’s last date of employment, rather than the last date of actual exposure, as the operative date for the statutory time limitation. The Board agreed and reversed the referee’s decision. The Board determined that the referee’s Findings of Fact 10 and 17 were not supported by Claimant’s testimony because Claimant did not actively work for Employer, nor was Claimant exposed to the hazards causing his occupational disease, after July of 1981. The Board concluded that Claimant failed to prove that he developed the disease within 300 weeks of his last exposure and thus did not satisfy the time limitation set forth under Section 301(c)(2) of The Pennsylvania Workmen’s Compensation Act (Act).1

[482]*482Section 301(c)(2) of the Act states in relevant part:

[W]henever 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.... In the event the employe did not work in an exposure at least one year for any employer during the three hundred week period prior to disability or death, the employer liable for the compensation shall be that employer giving the longest period of employment in which the employe was exposed to the hazards of the disease claimed.

The Board concluded that the referee erred because Claimant’s testimony did not support a finding that Claimant’s last exposure occurred in 1983. However, it is obvious that the referee determined that Claimant’s disease was discovered within three hundred weeks of his last date of employment, rather than exposure. Upon careful review of the record we conclude that the referee’s findings on this issue are supported by substantial evidence. The Board either misunderstood or mischaracterized the referee’s findings and erred in concluding that they were unsupported.

In addition, the Board erroneously interpreted Jones & Laughlin Steel Corp. v. Workmen’s Compensation Appeal Board (Feiertag), 90 Pa.Commonwealth Ct. 567, 496 A.2d 412 (1985), as holding that the 300 week limitation in the statute runs from a claimant’s last date of exposure to the hazards of his disease. In that case, one of the issues on appeal was whether substantial evidence supported the referee’s finding as to when the claimant’s disability commenced; the court did not specifically address the question of whether the relevant date under Section 301(c)(2) is the last date of exposure or the last date of employment. In its decision, the Feiertag court noted that the claimant was last exposed to the hazards of his disease on his last day of work. Although the court used the words “employment” and “exposure” interchangeably, in Feiertag those dates coincided. We cannot apply the language in Feiertag to the present case because both the issue and the facts before us are distinguishable.

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Related

Cable v. Workmen's Compensation Appeal Board
664 A.2d 1349 (Supreme Court of Pennsylvania, 1995)

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649 A.2d 480, 168 Pa. Commw. 201, 1994 Pa. Commw. LEXIS 595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cable-v-workmens-compensation-appeal-board-pacommwct-1994.