Commonwealth Court Cases - Commonwealth Court Case Law from PA - Pennsylvania Commonwealth Court

Microsoft Word - 1048CD04.doc

	ROMINGER LEGAL
		Pennsylvania Court Cases and Opinions - PA Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case was taken from the Pennsylvania Courts. Search our site for more cases - CLICK HERE

MOST CURRENT PENNSYLVANIA SUPERIOR COURT CASES

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James J. McIlnay,

:

Petitioner

:

:

v.

: No. 1048 C.D. 2004

: Argued: February 1, 2005
Workers' Compensation Appeal Board :
(Standard Steel),

:

Respondent

:
BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE
JIM
FLAHERTY, Senior Judge
OPINION
BY SENIOR JUDGE FLAHERTY

FILED: March 11, 2005

James McIlnay (Claimant) petitions for review of a decision of the
Workers' Compensation Appeal Board (Board) which affirmed the decision of a
Workers' Compensation Judge (WCJ) denying and dismissing Claimant's Claim
Petition for work-related hearing loss because it was filed more than three years
after his last exposure to occupational noise. Claimant raises the issue as a matter
of first impression whether his right to equal protection is violated because his
claim for hearing loss injury is not allowed to benefit from the discovery rule
which was previously applied to hearing loss cases. We affirm.

Claimant filed a Claim Petition on May 15, 2003 alleging that he
sustained hearing loss due to his exposure to noise while working for Standard
Steel (Employer). Claimant stopped working for Employer on July 31, 1994.
Employer filed an Answer denying the allegations set forth in Claimant's Claim
Petition. By decision dated December 29, 2003, the WCJ dismissed Claimant's
Claim Petition because it was not filed within three years of his last exposure to
occupational noise (which was his last day of work) as required by Section

306(c)(8)(viii) of the Workers' Compensation Act (Act).1 In doing so, the WCJ
rejected Claimant's argument that Section 306(c)(8)(viii) violates the Equal
Protection clauses of both the Pennsylvania and United States Constitutions.
Claimant appealed to the Board, which affirmed the decision of the WCJ without
addressing the constitutional issue because questions regarding the
constitutionality of the Act are beyond the Board's scope of review. Claimant's
appeal to this Court followed.2

On appeal, Claimant argues that Section 306(c)(8)(viii) violates the
Equal Protection clauses of both the Pennsylvania and United States Constitutions
by precluding him from applying the discovery rule to his hearing loss claim when
the discovery rule is applied to other, similar injuries covered under the Act.

Pursuant to Section 315 of the Act, 77 P.S. § 602, a claimant must file
a claim petition within three years after the injury occurs or his claim will be
barred. However, this three-year statute of limitations does not begin to run until a
claimant discovers that his injury is work-related. As such, this is commonly
called the "discovery rule." Prior to the passage of Act 1 of 1995 (Act 1), Act of
February 23, 1995, P.L. 1, this discovery rule applied to hearing loss cases.
However, Section 306(c)(8)(viii), which was enacted as part of Act 1, provides
that:

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513(c)(8)(viii).
2 This court's appellate review over an order of the Board is limited to determining
whether the necessary findings of fact are supported by substantial evidence, whether Board
procedures were violated, whether constitutional rights were violated or an error of law was
committed. Republic Steel Corporation v. Workmen's Compensation Appeal Board (Petrisek),
537 Pa. 32, 640 A.2d 1266 (1994).
2

(viii) Whenever an occupational hearing loss caused by
long-term exposure to hazardous occupational noise is
the basis for compensation or additional compensation,
the claim shall be barred unless a petition is filed within
three years after the date of last exposure to hazardous
occupational noise in the employ of the employer against
whom benefits are sought.
77 P.S. § 513(c)(8)(viii) (emphasis added).

In School District of Philadelphia v. Workers' Compensation Appeal
Board (Hennegan), 751 A.2d 729 (Pa.Cmwlth. 2000), the claimant, who worked
for employer as a shop teacher, stopped working in 1991. In August of 1995, he
filed a claim for hearing loss benefits. The WCJ concluded that Act 1 applied to
the case and therefore denied benefits pursuant to the three year statute of
limitations provided for in Section 306(c)(8(viii). Claimant appealed to the Board,
which reversed. The Board, relying on Anastasio v. Workmen's Compensation
Appeal Board (NGK Metals Corp.) 713 A.2d 116 (Pa. Cmwlth. 1997), petition for
allowance of appeal denied, 557 Pa. 634, 732 A.2d 618 (1998), and Sellari v.
Workmen's Compensation Appeal Board (NGK Metals Corp.), 698 A.2d 1372 (Pa.
Cmwlth. 1997), reasoned that the date of last exposure for statute of limitations
purposes began to run on the date the claimant discovered that his hearing loss was
related to his exposure to hazardous noise at work. Because his claim petition was
filed within three years of the date his doctor told him his hearing loss was work-
related, the Board concluded that the claimant's claim petition was timely filed.
On appeal, we reversed and stated that:
for statute of limitations purposes the last date of
exposure to hazardous occupational noise begins the
three year period in which a claimant must file his claim
petition in order to be timely. Claimant's and the Board's
reliance on Anastasio and Sellari is misplaced. In both of
those cases, Act 1 was not applicable and, therefore, the
date on which a claimant learned of the relationship
3

between his hearing loss and his work environment was
the operative date for statute of limitation purposes. That
concept is no longer controlling in cases that arise
under Act 1. See also Anchor Glass Container Corp. v.
Workers' Compensation Appeal Board (Temechko), 752
A.2d 448 (Pa.Cmwlth. 2000).
Id. at 731 (emphasis added).

In summary, this Court has previously held that the "discovery rule"
does not apply to hearing loss cases. However, in this case Claimant makes the
argument that his right to equal protection is violated because he is not allowed to
benefit from the discovery rule. This is not an issue that has been previously
addressed by this Court. Thus, we will proceed to consider Claimant's argument.

The Fourteenth Amendment to the United States Constitution
provides, in relevant part, that:
Section 1. No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of
the United States; nor shall any state deprive any person
of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.
(emphasis added). In addition, Article I, Section 26 of the Pennsylvania
Constitution provides that:
Neither the Commonwealth nor any political subdivision
thereof shall deny to any person the enjoyment of any
civil right, nor discriminate against any person in the
exercise of any civil right.

In Guess v. Workmen's Compensation Appeal Board (Link Belt/FMC
Corp.), 466 A.2d 1098 (Pa. Cmwlth. 1983), a workers' compensation claimant
argued that Section 301(e) of the Act violated the Equal Protection Clause because
it provided that partially disabling silicosis was not compensable. With regard to
our standard of review of the claimant's equal protection claim, this Court stated
that:
4

The proper standard of review in analyzing the
constitutionality of this classification is the rational basis
test. As the right to disability benefits is not a
fundamental right, and the class of partially disabled
employes is not a suspect class, the strict judicial scrutiny
test is inapplicable.

Id. at 1101. We believe that the rational basis test would likewise be applicable to
Claimant in the case now before this Court, as the right to hearing loss benefits is
not a fundamental right and employees with hearing loss are not a suspect class.
Therefore, we will proceed to address Claimant's equal protection claim under the
rational basis test.

With regard to the rational basis test, this Court stated in Guess that:

... to pass constitutional muster under the rational basis
test, the Act's classification must bear a reasonable
relationship to a legitimate state objective. See, Stevenson
v. Industrial Commission, 190 Colo. 234, 545 P.2d 712
(1976); Gauthier v. Campbell, Wyant and Cannon
Foundry Co., 360 Mich. 510, 104 N.W.2d 182 (1960).
In the social welfare area, "[a] statutory
discrimination will not be set aside if any state of facts
reasonably may be conceived to justify it." McGowan v.
Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6
L.Ed.2d 393 (1961). Moreover, if the classification has
some reasonable basis, "it does not offend the
Constitution simply because the classification 'is not
made with mathematical nicety or because in practice it
results in some inequality.' " Dandridge v. Williams, 397
U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491
(1970) (quoting Lindsley v. National Carbonic Gas Co.,
220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911)).
Furthermore, in Harrisburg School Dist. v. Zogby, 574 Pa. 121, 828 A.2d 1079
(2003), our Supreme Court stated that:
a classification, though discriminatory, will be deemed
reasonable if any state of facts reasonably can be
5

conceived to sustain it. See Curtis, 542 Pa. at 255, 666
A.2d at 268. However, a classification will be struck
down if it is based upon artificial or irrelevant
distinctions used for the purpose of evading the
constitutional prohibition. See Hickok I, 563 Pa. at 397,
761 A.2d at 1136 (citing Freezer Storage, Inc. v.
Armstrong Cork Co., 476 Pa. 270, 275, 382 A.2d 715,
718 (1978)). In undertaking its analysis, a reviewing
court is free to hypothesize reasons the Legislature might
have had for the classification. See id.; see also
Baltimore & Ohio R.R., 461 Pa. at 84, 334 A.2d at 644
(hypothesizing reasons that the Legislature could have
determined that railroad employees had a greater need for
mandatory weekly payment than employees of other
common carriers); Geary v. Retirement Bd. of Allegheny
County, 426 Pa. 254, 259-60, 231 A.2d 743, 746 (1967)
(suggesting reasons that the Legislature could have
determined that police officers were more in need of
early retirement than other county employees).
Id. at 137-138, 828 A.2d at 1089 (emphasis added).

In Burns v. Public School Employees' Retirement Board, 853 A.2d
1146 (Pa.Cmwlth. 2004), Mr. Burns, a teacher who had multiple sclerosis, retired
in 1999. A few months before he retired, Mr. Burns met with a disability
counselor and he partially filled out a disability annuity application. However, for
some reason Mr. Burns never completed the application and never returned it to
PSERS. After more than two years had passed, Mr. Burns returned to the
retirement counselor and was informed that he was not eligible for a disability
annuity because he did not return his application within two years of his last
contribution to PSERS as required by the Public School Employees Retirement
Code. On appeal, Mr. Burns argued that the two-year statute of limitations
violated his right to equal protection. We stated that:

To be sustained on equal protection grounds, a limitation
period must be both: 1) sufficiently long in duration to
6

present a reasonable opportunity for those with an
interest to assert the claim; and 2) be substantially related
to the Commonwealth's interest in avoiding litigating
stale or fraudulent claims. Astemborski v. Susmarski, 502
Pa. 409, 466 A.2d 1018 (1983). Statutes of limitation
pertain to remedies and do not impair fundamental rights.
Noetzel v. Glasgow, Inc., 338 Pa.Super. 458, 487 A.2d
1372 (1985).
Id. at 1153. We rejected Mr. Burns' argument that the two-year limitation in the
Retirement Code violated his right to equal protection because he was presented
with a reasonable length of time in which to assert his claim for a disability
annuity. In addition, we held that the time limitation was substantially related to
the Commonwealth's interest in avoiding stale or fraudulent claims and that "[i]f
members were permitted to apply for disability annuities more than two years after
their last contribution to PSERS, difficulties could arise in proving the disability
due to loss of evidence, death or disappearance of witnesses, or fading memories."
Id.

There are many reasons why it is reasonable to apply the discovery
rule to other injuries, such as occupational diseases, and not to apply the discovery
rule to hearing loss cases. The symptoms of a disease may not show up and it may
not be apparent that such symptoms are work-related until many years after the
exposure to the disease causing substance. Other injuries that occur over long
periods of time, such as repetitive stress injuries, may not be readily recognized as
work-related until a claimant is told as much by a doctor. However, these concerns
are not present with hearing loss. With the last day of exposure to hazardous noise,
which is normally the last day of work, the continuing injury to the ears stops. The
Legislature, having created the statutory liability of the employer for hearing loss,
is within its constitutional powers to create limitations on the duration of the
employer's exposure to liability. The Legislature does not attempt, and is not
7

bound, to declare that it has discovered an exact period within which hearing loss
is certain to occur if it is possibly work-related but is only using its power to fix a
reasonable period of time during which the claimant should discover that his
hearing loss is work-related as three years from this date. Because the injury to the
ears stops with the last day of exposure to hazardous noise, we believe that the
Legislature has acted within its powers in establishing three years after the last
exposure to such noise as a sufficiently long duration of time to give a claimant a
reasonable opportunity to assert a claim for hearing loss.

Furthermore, there are other factors that could have caused or
contributed to Claimant's hearing loss during the nine years after his last day of
work. As in Burns where we were concerned with the difficulties that could arise
in proving the disability due to loss of evidence, in this case it would now be
difficult to determine whether Claimant's hearing loss is actually work-related
because so much time has passed. To allow Claimant to proceed with his Claim
Petition nine years after he quit working and six years after the last day he could
have filed the Claim Petition could be unfair to Employer, who has a right to the
protections afforded by a statute of limitations. For these reasons, it is reasonable
for the Legislature to require that hearing loss claims be filed within three years of
the last exposure to hazardous noise and to not apply the discovery rule to hearing
loss cases. Therefore, Claimant's right to equal protection was not violated.

Accordingly, the order of the Board is affirmed.

JIM FLAHERTY, Senior Judge

8

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James J. McIlnay,
:

Petitioner

:

:

v.

: No. 1048 C.D. 2004

:
Workers' Compensation Appeal Board :
(Standard Steel),

:

Respondent

:

O R D E R

AND NOW, March 11, 2005, the order of the Workers'
Compensation Appeal Board is hereby AFFIRMED.

JIM FLAHERTY, Senior Judge