The opinion of the court was delivered by: GOURLEY
This is a negligence action in which plaintiff seeks to recover damages for injuries resulting from an accident occurring in the course of his employment. Defendants are Industrial Chemical Company, alleged to be plaintiff's immediate employer, Allied Chemical Corporation, alleged to be a parent of the former Corporation and an employer of plaintiff by virtue of the parent-subsidiary relationship, and Aloyco, Inc., alleged to be the manufacturer of a certain valve installed in the plant where plaintiff was employed. The Complaint invokes the diversity jurisdiction of the Court.
Defendants Industrial Chemical Company and Allied Chemical Corporation have filed a Motion to Dismiss, wherein it is asserted that the Workmen's Compensation Act of the Commonwealth of Pennsylvania bars the instant common law action against them. Plaintiff alleges that, at all relevant times, he was an employee of both defendants. He does not contend that either are not employers within the meaning of the Workmen's Compensation Act. Accordingly, for purposes of the instant Motion, the aforementioned defendants together will be referred to as plaintiff's employers.
At oral argument upon the Motion, counsel for the respective parties agreed to file a written Stipulation as to certain facts not appearing in the Complaint but upon which there is no disagreement. The Stipulation has been filed. The Court relies in this determination upon both the Stipulation and the Complaint filed herein, and, accordingly, the Motion will be treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, as is required by Rule 12(b). Upon review of the Complaint, Stipulation, agreements of counsel and the law applicable herein, the Court is of the opinion that the Motion must be granted.
The facts are these. On August 9, 1968, plaintiff suffered an accident while in the course of his employment at defendant-employers' plant. He sustained substantial injuries which allegedly included, inter alia, contusions and abrasions over his entire body, an injury to the spine, and extensive scars and disfigurement of his arms, back, abdomen, hip, leg and foot. As a result of these injuries, plaintiff was hospitalized and rendered totally disabled for an undesignated length of time. He has now returned to work.
At some time subsequent to his injury, plaintiff entered into an agreement with The Travelers Insurance Company, defendant-employers' workmen's compensation insurance carrier, pursuant to which the insurer paid various hospital and medical expenses incident to the care and treatment of plaintiff's injuries and also disability benefits for the period of plaintiff's temporary total disability. In addition to the benefits which heretofore have been paid by the insurer, plaintiff has sought compensation for the disfiguring scars on his body. After a hearing, Pennsylvania Workmen's Compensation Referee Albert S. Diaz disallowed the claim for additional benefits. Plaintiff's appeal to the Pennsylvania Workmen's Compensation Board from the decision of the Referee is currently pending. Plaintiff also has instituted the instant action.
There is no question that plaintiff has accepted the provisions of the Pennsylvania Workmen's Compensation Act, June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq. Section 302(a) of the Act, 77 P.S. § 461, provides that "In every contract of hiring * * * expressed or implied * * * it shall be conclusively presumed that the parties have accepted the provisions" of the Act unless written notice is given to the contrary. Plaintiff has not given such notice. Moreover, he has indicated his acceptance of the Act by accepting compensation under it for the accident in question.
The Act provides that the remedies under it are exclusive of all common law actions. Hyzy v. Pittsburgh Coal Co., 384 Pa. 316, 121 A. 2d 85 (1956). Section 303 of the Act, 77 P.S. § 481, provides that acceptance of the Act "shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any injury or death occurring in the course of the employment, or to any method of determination thereof, other than as provided in article three of this act." In accepting the Act, an employee gains a right which he did not have at common law but surrenders another. He acquires a right to compensation for an occupational injury regardless of whether the injury is caused by his employer's negligence, but, in return, he yields his right to sue his employer in a common law action for negligence.
However, an employee is barred from suing his employer only with respect to "injuries which bring him within the provisions of the Workmen's Compensation Act." Scott v. C.E. Powell Coal Co., 402 Pa. 73, 77, 166 A. 2d 31, 34 (1960). Plaintiff contends that bodily disfigurement, as distinguished from disfigurement of the face and neck, is not an injury within the provisions of the Act and, therefore, may be the subject of a common law action in tort against plaintiff's employer. In so asserting, plaintiff relies upon Section 306(c) and (d) of the Act, 77 P.S. § 513, which affords a fixed amount of compensation for certain enumerated specific losses including "serious and permanent disfigurement of the head, or face, of such a character as to produce an unsightly appearance, and such as is not usually incident to the employment."
Clearly, Section 306(c) and (d) of the Act affords plaintiff no compensation for the bodily scarring resulting from his accident. Nevertheless, it does not follow from this fact that the injury in question is beyond the provisions of the Act. Cf. Scott v. C.E. Powell Coal Co., supra, at 77, 166 A. 2d 31; Billo v. Allegheny Steel Company, 328 Pa. 97, 103, 195 A. 110 (1937). The Act is broad in its coverage. In Section 1, 77 P.S. § 1, the Act is made applicable to "all accidents," and in Section 301(a), 77 P.S. § 431, it is provided that, upon acceptance of the Act by an employer and an employee, "compensation for personal injury to, or for the death of such employee, by an accident, in the course of his employment, shall be paid in all cases by the employer, without regard to negligence, according to the schedule contained in sections three hundred and six and three hundred and seven of this article." By these provisions, the Pennsylvania Legislature intended to create a comprehensive statutory scheme encompassing all injuries arising out of accidents occurring within the course of employment.
Similarly, it was the intention of the Pennsylvania Legislature that the Act would provide the sole and exclusive means of recovery for all such injuries. Section 303 of the Act, supra, expressly bars common law actions "for any injury or death occurring in the course of employment." As stated in Venezia v. Phila. Electric Co., 317 Pa. 557, 559, 177 A. 25, 26 (1935):
"If plaintiff was at the time of the accident an employee of defendant, then the Workmen's Compensation Act of June 2, 1915, P.L. 736 furnished the exclusive method of securing compensation for his injury, and an action in trespass would not lie. (Citations omitted.)"
Plaintiff's bodily scarring is admittedly an injury resulting from an accident within the course of his employment. Accordingly, it is an injury "within the provisions of the Workmen's Compensation Act," and plaintiff is barred by Section 303 of the Act, supra, from maintaining a common law action based thereon against his employer.
While Section 306(c) and (d) of the Act, supra, does not enumerate bodily disfigurement as a specific loss for which a claimant would be entitled to a fixed compensation thereunder, nevertheless, Pennsylvania courts might well find that such an injury constitutes a partial disability compensable under Section 306 (b) of the Act, 77 P.S. § 512, in an amount equal to the loss of earning power resulting therefrom. Instructive in this regard is the case of Scott v. C.E. Powell Coal Co., supra, where an employee sued his employer to recover damages for the permanent loss of his senses of taste and smell resulting from an accident occurring in the course of his employment. The employee already had received workmen's compensation payments for eight weeks of total disability until he was able to return to work. He asserted in the suit that, since the loss of the senses of taste and smell was not among the enumerated specific losses which are compensable under Section 306(c) and (d) of the Act, the Act did not bar his common law action to recover damages for this particular injury. ...