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decided: October 21, 1983.


Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Sojourner Guess v. Workmen's Compensation Appeal Board and Link Belt, F.M.C. Corp., No. 5136 March Term, 1977.


Marc S. Jacobs, Galfand, Berger, Senesky, Lurie & March, for appellant.

Robert C. Geller, Jr., Deputy Chief Counsel, for Appellee, Commonwealth of Pennsylvania.

Lawrence L. Robinson, with him Joseph R. Thompson Law Offices, for appellee, Link Belt, F.M.C. Corporation.

Judges Rogers, Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 77 Pa. Commw. Page 320]

Sojourner Guess (Claimant) appeals from a Philadelphia County Common Pleas Court order which affirmed the Workmen's Compensation Appeal Board's (Board) decision sustaining the referee's dismissal of Claimant's claim petition for compensation for silicosis filed under The Pennsylvania Occupational Disease Act (Act).*fn1

Claimant was employed by Link Belt/FMC, Inc. (Employer), as a sand molder for approximately thirty years. During the course of this employment Claimant was exposed daily to sand and silicon dioxide dust

[ 77 Pa. Commw. Page 321]

    from which he developed silicosis.*fn2 Upon being permanently separated from his Employer in September 1972, Claimant was briefly hospitalized for respiratory problems.

On February 2, 1973, Claimant filed a claim petition for compensation for silicosis under the Act.*fn3 Upon Claimant's failure to prove that he was totally disabled from silicosis as required by Section 301(e) of the Act, 77 P.S. § 1401(e),*fn4 his claim was dismissed by the referee. Refusing to adjudicate the constitutionality of Section 301(e), the Board affirmed the referee's determination. The common pleas court, expressly rejecting the constitutional challenges to Section 301(e), upheld the Board's decision. This appeal followed.

Acknowledging that he is partially, and not totally, disabled from silicosis, Claimant raises three constitutional

[ 77 Pa. Commw. Page 322]

    questions. First, does Section 301(e) violate the due process clause of the fourteenth amendment to the United States Constitution because Claimant, while partially disabled from silicosis, is denied both compensation under the Act and a common law remedy? Second, does Section 301(e) violate the equal protection clause of the fourteenth amendment to the United States Constitution by irrationally and discriminatorily excluding one class of employes (workers with partially disabling silicosis) from receiving compensation while providing benefits for another class of employes partially disabled from occupational diseases other than silicosis? Third, does Section 301(e) contravene Article 3, Section 18 of the Pennsylvania Constitution, the enabling provision of the Act?

In Moffett v. Harbison-Walker Refractories Company, 339 Pa. 112, 14 A.2d 111 (1940) recovery for partial disability from silicosis was excluded at common law although only total disability was compensable under the Act. Our Supreme Court pertinently stated:

We think it is clear, therefore, that the legislature intended to bring all silicosis sufferers, whether partially or totally disabled, under the Act and that by accepting the provisions of the compensation acts, an employe agreed to look solely to the Act for compensation and to give up any remedy he might otherwise have had.

Id. at 117, 14 A.2d at 113-14. Claimant first asserts that, being partially disabled by silicosis, he is denied both compensation under the Act, Section 301(e), and common law remedies, Moffett, in violation of the due process clause of the United States Constitution. We find this unsupported contention to be without merit.

If an occupational disease is covered by the Act, such as silicosis (one of the occupational diseases enumerated at Section 108), and the parties have accepted the Act (as they have sub judice), the exclusive remedy,

[ 77 Pa. Commw. Page 323]

    if any, is statutory and recovery at common law is precluded. Moffett; see also, Greer v. United States Steel Corporation, 475 Pa. 448, 380 A.2d 1221 (1977); Section 303, 77 P.S. § 1403.*fn5 While Section 301(e) denies Claimant compensation for partial, but not total disability due to his silicosis, and bars a common law negligence action against his employer, we nevertheless find no deprivation of due process.*fn6 Our Supreme Court's language in Scott v. C.E. Powell Coal Co., 402 Pa. 73, 77-8, 166 A.2d 31, 34 (1960) is apposite:

We have ruled that when an employe sustains injuries which bring him within the provisions of the Workmen's Compensation Act, the question as to what amount he is compensated depends on the provisions of the Act, and if that measure yields him nothing, the assumption is that he is nevertheless satisfied with his agreement.

[ 77 Pa. Commw. Page 324]

See, Moffett v. Harbison-Walker Refractories Company, 1940, 339 Pa. 112, 14 A.2d 111.

Claimant next argues that Section 301(e) is violative of the equal protection clause of the fourteenth amendment. When considering equal protection claims we must "evaluate the disparity of treatment by the state between classes of individuals whose situations are arguably indistinguishable." McCoy v. State Board of Medical Education and Licensure, 37 Pa. Commonwealth Ct. 530, 537, 391 A.2d 723, 726 (1978). Claimant asserts that the Act's classification denying compensation (and common law remedies) to workers partially disabled from silicosis (and from other occupational diseases designated in Section 301(e)), and granting compensation to workers partially disabled from covered occupational diseases not included in Section 301(e), unconstitutionally denies to Claimant equal protection of the law. We disagree.

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. Thus 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 (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

[ 77 Pa. Commw. Page 325]

    in practice it results in some inequality.'" Dandridge v. Williams, 397 U.S. 471, 485 (1970) (quoting Lindsley v. National Carbonic Gas Co., 220 U.S. 61, 78 (1911)).

We believe that the legislature had a rational basis for denying partial disability benefits to workers suffering from silicosis, one of the four lung dust diseases included in Section 301(e). The legislature, recognizing the lung dust hazards prevalent in Pennsylvania's dominant, heavy industries, and mindful of the financial impact that full, unrestricted liability for disability arising from such dust diseases would have on the compensation system and the state's economy,*fn7 enacted provisions limiting and specially conditioning benefits for disability by silica, coal mine and asbestos.*fn8 See, Rich Hill Coal Co. v. Bashore, 334 Pa. 449, 7 A.2d 302 (1939); see also, 2 A. Barbieri, Pa. Work. Comp. § 7.26 (1975).

Therefore, in conformity with the great weight of decisional authority of other jurisdictions,*fn9 and mindful

[ 77 Pa. Commw. Page 326]

    that a legislature may address a problem "one step at a time," or even "select one phase of one field and apply a remedy there, neglecting others," Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955), we find that the challenged statutory classification has a rational basis and does not deny Claimant equal protection of the law.

Lastly, Claimant generally alleges that Section 301(e) violates Article III, Section 18 of the Pennsylvania Constitution which provides pertinently:

The General Assembly may enact laws requiring the payment of employers, or employers and employes jointly, of reasonable compensation for injuries to employes arising in the course of their employment, and for occupational diseases of employes, whether or not such injuries or diseases result in death, and regardless of fault of employer or employe, and fixing the basis of ascertainment of such compensation and the maximum and minimum limits thereof. . . .

This enabling amendment has been construed as establishing three fundamental requirements of The Pennsylvania Workmen's Compensation Act*fn10 and, by necessary implication, the Occupational Disease Act: (1) the compensation required of employers must be reasonable; (2) the compensated injuries and diseases must arise in the course of employment; (3) benefits

[ 77 Pa. Commw. Page 327]

    must be paid by employers to their own employes. Rich Hill Coal Co., 334 Pa. at 458, 7 A.2d at 307. As the challenged provision of the Act violates none of the fundamental requirements of Article III, Section 18, we reject Claimant's final contention.


And Now, this 21st day of October, 1983, the order of the Court of Common Pleas of Philadelphia County dated December 2, 1980, is affirmed.



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