Penn Steel Foundry & Machine Co. v. Workmen's Compensation Appeal Board , 122 Pa. Commw. 171 ( 1988 )

Opinion by

Senior Judge Kalish,

Penn Steel Foundry and Machine Company (employer) seeks review of the opinion and order of the Workmens Compensation Appeal Board (Board), affirming the referee, which granted the fatal claim petition of the claimant, Ruth R. Wagner. We affirm.

Claimant seeks compensation for the death of her husband, David Wagner (decedent), alleging that he died as a direct result of an occupational disease.

The employer contends that the fatal claim petition should fail because decedents death did not occur within 300 weeks of the last exposure, pursuant to section 301(c)(2) of The Pennsylvania Workmens Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §411(2).

Our scope of review is limited to a determination of whether constitutional rights were violated, an .error of law was committed, or whether necessary findings of feet are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704; Estate of McGovern v. State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

In workmens compensation, at an early date, our legislature made provisions for death benefits payable to a widow, provided death from the disease occurred within three years of the last exposure.

Since then, the Act has been amended. Section 301(c) of the Act, 77 P.S. §411(2), now provides:

Whenever 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 employment in an occupation to which he was exposed to hazards of such disease: And provided further, That if the employe’s compensable disability has occurred within such a period, his subsequent death as a result of the disease shall likewise be compensable. (Emphasis added.)

Thus, the Act specifically provides that when disability occurs within 300 weeks of exposure, the subsequent death as a result of the disease shall likewise be compensable. The legislature clearly recognized the sometimes insidious nature of occupational diseases and although death may occur after 300 weeks of the last exposure, it is nevertheless compensable if the disability occurred within the 300 week period.

It is the date of the compensable disability which triggers the limitation period even though death may occur after 300 weeks of the last exposure. The injury date begins to run after it is discoverable and it becomes apparent that a compensable injury or disease was sustained. Ciabattoni v. Birdsboro Steel Foundry & Machine Co., 386 Pa. 179, 125 A.2d 365 (1956). See also Roschak v. Vulcan Iron Works, 157 Pa. Superior Ct. 227, 42 A.2d 280 (1945).

Our courts have held that a widows right to compensation under the Act is a separate cause of action, independent of and not derivative from the right of a deceased employee. Kujawa v. Latrobe Brewing Co., 454 Pa. 165, 312 A.2d 411 (1973). A widows right is not conditional upon decedents having petitioned for or received compensation for the injury. Moore v. Dodge Steel Co., 206 Pa. Superior Ct. 242, 213 A.2d 130 (1965). To constitute a basis for the widows independent cause of action, all that must be shown is a “compensable disability” that has occurred within the requisite period.

Proof of a compensable disability differs from proof of a “compensated disability.” A “compensable injury” within Workmens Compensation is one caused by an accident arising out of and in the course of employment. Blacks Law Dictionary 906 (5th ed. 1979). Where remuneration has been given, it is a “compensated” disability.

In Toffalori v. Donatelli Granite Co., 157 Pa. Superior Ct. 311, 43 A.2d 584 (1945), the court was confronted with a widows claim where death occurred after the three year period, but there had been a compensation award. The court held that under those circumstances the widows claim was an extension of the decedents claim. See also Valent v. Berwind-White Coal Mining Co., 172 Pa. Superior Ct. 305, 94 A.2d 197 (1953).

In Fortely v. Workmen's Compensation Appeal Board (J & L Steel C.), 117 Pa. Commonwealth Ct. 356, 543 A.2d 1248 (1988), this court found that the widows claim was not a continuation of the decedents claim since no testimony was presented to establish that the decedent became disabled within the 300 week period, nor that decedent became aware of his disability and its relationship to his work.

In the instant case, the referee found that decedent was a molder who had been hospitalized and treated for pneumoconiosis and that he became totally and permanently disabled on November 14, 1977. However, this information was not communicated to him until January 16, 1978. He died on December 22, 1983. Although decedent filed no claim for compensation during his lifetime, he did have a “compensable disability” and his widow timely filed her claim. Accordingly, we affirm.

Order

Now, December 16, 1988, the order of the Workmens Compensation Appeal Board, Decision No. A-91289, dated May 29, 1987, is affirmed.

Judge MacPhail did not participate in the decision in this case.