decided: January 14, 1988.
MICHAEL P. DUFFY, DECEASED, MARY DUFFY, WIDOW
CITY OF SCRANTON FIRE DEPT. AND COMMONWEALTH OF PENNSYLVANIA, BUREAU OF WORKERS' COMPENSATION. COMMONWEALTH OF PENNSYLVANIA, BUREAU OF WORKERS' COMPENSATION, APPELLANT
Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Michael P. Duffy (Dec'd) Mary Duffy (Widow) v. City of Scranton/Fire Dept. and Commonwealth of Pennsylvania, Bureau of Workers' Compensation, No. 86-Civ. 2692.
Richard T. Kelley, with him, Wanda A. Whare, for appellant.
George W. Teets, for appellee, Mary Duffy.
Daniel A. Miscavige, with him, Frederick H. Hobbs, for appellee, City of Scranton/Fire Dept.
Judges Craig, Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.
[ 112 Pa. Commw. Page 539]
The Bureau of Workers' Compensation (Bureau), acting for the Commonwealth of Pennsylvania,*fn1 and the City of Scranton (Employer), appeal here the order of the Court of Common Pleas of Lackawanna County which affirmed the grant of widow's benefits to Mary Duffy (Claimant) by the Workmen's Compensation Appeal Board (Board) under The Pennsylvania Occupational Disease Act (Act).*fn2 We shall affirm.
Claimant's husband, Michael P. Duffy, had been employed as a fire fighter by the City of Scranton for twenty-one years. As a result of exposures during the performance of his duties, he became totally disabled on November 2, 1971 from coronary insufficiency. During his lifetime he filed for and was awarded disability
[ 112 Pa. Commw. Page 540]
benefits payable by the Commonwealth under Section 108(o) of the Act*fn3 which he received until his death on December 6, 1984, from coronary insufficiency. His widow, Mary Duffy, Claimant herein, filed a fatal claim petition seeking compensation and funeral benefits under Sections 301(a) and 307.2*fn4 of the Act for the disease death under Section 108(o).*fn5 The referee concluded that Decedent's death was the result of the occupational disease incurred in the hazardous employment as a fire fighter with the City of Scranton and ordered the Commonwealth to pay weekly compensation benefits and funeral expenses.
On appeal to this Court, the Bureau contends as it did before the trial court and the Board, that the death claim herein is time barred under Section 301(c) of the Act. The pertinent portion of that section reads:
Whenever compensable disability or death is mentioned as a cause for compensation under this Act, it shall mean only compensable disability or death occurring within four years after the date of his last employment in such occupation or industry.
Although there was compensable disability, it is argued, the death did not occur within four years after the date of Decedent's "last employment in such occupation or
[ 112 Pa. Commw. Page 541]
industry" and that, therefore, death benefits must be denied. We disagree and hold that the Board and trial court correctly accepted as controlling the long established and accepted ruling in Toffalori v. Donatelli Granite Co., 157 Pa. Superior Ct. 311, 43 A.2d 584 (1945).
In Toffalori, as here, liability for the fireman's disability under Section 108(o) had been accepted and payment of benefits therefor made until the death which occurred after the period provided in Section 301(c)*fn6 had elapsed. The Court held that the controlling words in the applicable portion of Section 301(c) were "[w]henever compensable disability or death is . . . cause for compensation under this act. . . ." Thus, having established timely and compensable exposure, and reading "disability or death" disjunctively, the requirements of the Act were met and the death benefits were merely a continuum of the previously admitted or established liability to pay compensation. It follows, of course, that if the facts were different and the "cause for compensation" were the death, no compensation having been paid for disability during the decedent's lifetime, the claim would be time barred. We have so held, Kilvady v. United States Steel Corporation, 90 Pa. Commonwealth Ct. 586, 496 A.2d 116 (1985), and our Supreme Court has recognized the Toffalori exception. Kujawa v. Latrobe Brewing Company, 454 Pa. 165, 169, n. 5, 312 A.2d 411, 413, n. 5 (1973). We decline to honor the Commonwealth's request that we "overrule" or distinguish Toffalori. We think the Toffalori exception is a wise one.*fn7 The purpose of Section 301(c) of the
[ 112 Pa. Commw. Page 542]
Act is to provide timely notice of disability or death. Thus, the Bureau cannot assert a failure of notice in the present case where it had been paying total disability benefits for the same exposure for thirteen years.
We come now to the Commonwealth's alternative contention that while the provision in Section 108(o) requires the Commonwealth to "pay the full amount of compensation for disability under this clause," the death that results from that disability is a separate cause of action and, as such, the Commonwealth's liability should be limited to "forty per centum," as provided in Section 308(a) of the Act.*fn8 Again we must disagree.
As Judge Cottone stated in his opinion for the Lackawanna trial court in this case:
We are not persuaded by the Commonwealth's argument that section 308(a), which apportions liability between the employer and the Commonwealth, should control the payment of these benefits. Rather we are in firm agreement with the Appeal Board that these benefits are, indeed, payable by the Commonwealth as a continuim [sic] of the lifetime claim under Section 108(o). . . .
[ 112 Pa. Commw. Page 543]
Again, we cannot but help agree with the Appeal Board that the Commonwealth, who was the responsible party for lifetime benefits for some thirteen (13) years under decedent's claim, is also the responsible party for survivor benefits stemming from that same claim.
We hold, therefore, that where "disability" is the "cause for compensation" under Section 301(c) of the Act, as in this case, the death from that same exposure and disability does not result in the reduction of the Commonwealth's full liability under Section 108(o) to forty percent of that existing liability.
For the reasons stated, we will affirm.
Now, January 14, 1988, the order of the Court of Common Pleas of Lackawanna County at No. 86-CIV. 2692, dated November 24, 1986, is hereby affirmed.