Cable v. W.C.A.B. (Gulf Oil/Chevron USA, Inc.)

Citation168 Pa.Cmwlth. 201,649 A.2d 480
PartiesKenneth CABLE, Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (GULF OIL/CHEVRON USA, INC.), Respondent.
Decision Date30 March 1995
CourtCommonwealth Court of Pennsylvania

Anne P. Migatz, for petitioner.

Douglas B Marshall, for respondent.

Before PELLEGRINI and FRIEDMAN, JJ., and RODGERS, Senior Judge.

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.

In 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 coumene. 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.

....

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. Zelneronok 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.

....

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 Section 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. Furthermore, the Feiertag court stated that, for an occupational disease to be compensable, "it must occur within three hundred weeks after the last date of employment in an occupation or industry in which the hazard is present." Id. at 571, 496 A.2d at 415.

On appeal to this Court, 2 Claimant argues that the Board erroneously interpreted Section 301(c)(2) of the Act; Claimant contends that the time limitation contained in Section 301(c)(2) begins to run from Claimant's last date of employment, citing J & L Steel Corp. v. Workmen's Compensation Appeal Board (Jones), 145 Pa.Commonwealth Ct. 201, 602 A.2d 912 (1992). In that case, the court specifically addressed the question presented here, concluding as follows:

Employer also asserts, however, that Claimant did not prove that Decedent was exposed to asbestos within three-hundred weeks of his death. The statute does not require exposure within three-hundred weeks of death but rather requires death within three-hundred weeks of the date the decedent last worked in the occupation or industry where the exposure occurred. No one disputes that Decedent's last day of work was April 7, 1983 and that he died on September 15, 1986. Thus, he certainly died within three-hundred weeks of his last day of work. And, while the record evidence that his exposure to asbestos was within three-hundred weeks of his death may be weak, even Employer does not claim that he was never exposed to asbestos asserting only that the exposure was too temporally remote to trigger liability. As we reject this notion, we conclude that Claimant met her burden of proof.

Id. at 207-08, 602 A.2d at 915.

As Section 301(c)(2) of the Act applies to either death or disability where they result from an occupational disease, we find the above language to be controlling in this matter.

Employer argues that the Board's interpretation is supported by our decisions in Avalotis Painting v. Workmen's Compensation Appeal Board (Markulin), 153 Pa.Commonwealth Ct. 511, 621 A.2d 1167 (1993) and Hoosier Engineering Co. v. Workmen's Compensation Appeal Board (Winters), 153 Pa.Commonwealth Ct. 229, 620 A.2d 697 (1993). However, in each of those cases, the claimant worked for more than one employer, the claimant's exposure occurred during more than one period of employment, and the question before the court was which employer was responsible for the claimant's workmen's compensation benefits.

In Avalotis, the court summarized its decision as follows:

Accordingly, this court concludes that the word "exposure" i...

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