Hoosier Engineering Co. v. Workmen's Compensation Appeal Board , 153 Pa. Commw. 229 ( 1993 )

SMITH, Judge.

Hoosier Engineering Company and its insurance carrier, Hartford Insurance Company (collectively, Hoosier) appeal from the order of the Workmen’s Compensation Appeal Board (Board) which affirmed the referee’s decision granting the claim petition filed by Marvin U. Winters (Claimant) and ordering Hoosier to pay Claimant total disability benefits pursuant to Section 108(k) of The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of the Act of October 17, 1972, P.L. 930, 77 P.S. § 27.1(h).¹ The issues raised by Hoosier are whether under Section 301(c)(2) of the Act, 77 P.S. § 411(2), the liable employer is that employer providing the longest period of employment or the longest period of exposure to hazards of the claimed disease; and whether the referee’s findings are supported by substantial evidence.²

On February 29, 1988, Claimant filed a claim petition against Floosier alleging that he was totally disabled due to silicosis resulting from exposure to dust while working as a drilling and blasting operator for Hoosier. At hearings in this matter, Claimant testified and presented the medical report of his physician to support his claim against Hoosier. Hoosier did not present testimony of any witnesses and stipulated that Claimant was totally disabled and that he was exposed to the hazards while employed by Hoosier in 1983. The referee made the following pertinent findings of fact:

7. The claimant was employed as a blaster/dynamite man from 1964 through November, 1983, which, at times, involved working in a hole, below ground level, drilling holes in rocks and setting dynamite for blasting. The claimant was exposed to a severe silica and rock dust hazard while actually working as a blaster/dynamite man.

8. During the 300 week period prior to his disability on September 29, 1987, the claimant had not worked for the defendant, Hoosier Engineering Company for a period of one year.

9. The claimant last worked for the defendant, Hoosier Engineering Company, as a blaster/dynamite man. He would work down in a hole below ground level, drill holes in rocks and set the dynamite. He performed this type of work for this defendant from August 8, 1983 through November, 1983 during which period he was exposed to heavy concentrations of silica and rock dust.

10. The claimant was employed by the defendant, Hoosier Engineering Company, from November, 1983 to January 19, 1984. He worked as a truck driver; and during this period of employment, he was not exposed to a silica or rock dust hazard.

13. After reviewing all of the testimony and employment evidence presented, your Referee finds that the defendant, Hoosier Engineering Company, provided the longest total period of employment during which the claimant was exposed to a severe silica and rock dust hazard, in the 300 week' period prior to his disability on September 29, 1987.

20. Your Referee finds as a fact that as of September 29, 1987, the claimant was totally disabled due to silicosis, which resulted from the accumulative effect of his exposure to a silica and rock dust hazard during the entire period of time that he was employed and performing the duties of a blaster/dynamite man out of the Union Hall for various companies, beginning in 1964 through his last hazardous employment with Hoosier Engineering company in November, 1983. The date of September 29, 1987 is the date of Dr. Begley’s examination and evaluation of the claimant.

Based upon these findings, the referee awarded Claimant total disability benefits to be paid by Hoosier, concluding that Hoosier is the responsible employer under Section 301(c)(2) of the Act. On appeal, the Board affirmed the referee’s decision.

Section 301(c)(2) of the Act provides in pertinent part: The employer liable for compensation provided by ... section 108, subsections (k), (l), (m), (o), (p) or (q), shall be the employer in whose employment the employe was last exposed for a period of not less than one year to the hazard of the occupational disease claimed. In the event the employe did not work in an exposure at least one year for any employer during the three hundred week period prior to disability or death, the employer liable for the compensation shall be that employer giving the longest period of employment in which the employe was exposed to the hazards of the disease claimed. (Emphasis added.)

Hoosier contends that the Board and the referee misconstrued the language in Section 301(c)(2) in concluding that Hoosier is the liable employer.³ Hoosier argues that in determining the liable employer, only the length of employment, not the length of actual exposure during the employment, must be considered; and since Claimant’s testimony during cross-examination demonstrates that he was exposed to silica dust during two separate employments for eight months with another employer, H.P. Foley (Foley), from May 1982 to October 1982 and from May 1983 to August 1983 while he was exposed during only five months of the employment with Hoosier, Foley is the responsible employer.⁴ On the other hand, Claimant maintains that the liable employer under Section 301(c)(2) should be determined by the length of exposure during the employment.

To ascertain the meaning of the language in question, this Court must examine Section 301(c)(2) in view of the statutory construction principle which mandates that provisions of a statute be interpreted with reference to the context in which they appear. Consulting Engineers Council of Pennsylvania v. State Architects Licensure Board, 522 Pa. 204, 560 A.2d 1375 (1989); see also Section 1932(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1932(a), which provides that “[statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things.”

Hoosier’s contention that only the length of employment must be considered in determining the liable employer under Section 301(c)(2) totally disregards the fundamental rule of statutory construction under which it is presumed that the legislature does not intend a result which is absurd and unreasonable. Section 1922(1) of the Statutory Construction Act, 1 Pa.C.S. § 1922(1); Boettger v. Loverro, 526 Pa. 510, 587 A.2d 712 (1991). Theoretically, the construction of Section 301(c)(2) urged by Hoosier would impose liability on an employer providing eleven months of employment with one day of exposure to silica hazards and absolve an employer providing ten months and twenty-nine days of employment with daily exposure to silica házards. It is apparent that such an anomaly was not intended by the legislature.

In Horne v. Workmen’s Compensation Appeal Board (Owens-Corning Fiberglas, A C & S, Inc.), 98 Pa.Commonwealth Ct. 541, 512 A.2d 765 (1986), appeal denied, 517 Pa. 609, 536 A.2d 1333 (1987), this Court concluded that the claimant gave timely notices of occupational disease to the employers but remanded the case to the Board to determine in whose employ the claimant “was longer exposed to asbestos.” Id. 98 Pa.Commonwealth Ct. at 556, 512 A.2d at 772. Although the issue raised by Hoosier in the matter sub judice was not before this Court in Home, the remand for a determination of the length of exposure to the hazards during employment with each employer supports the construction of Section 301(c)(2) that the responsible employer is the one which subjected the employee to an exposure for the longest period. Further, in Adams Steel Erection, Inc. v. Workmen’s Compensation Appeal Board (Klavonick), 117 Pa.Commonwealth Ct. 290, 543 A.2d 241 (1988), this Court, in explaining Section 301(c)(2), reiterated that the “liable employer is that which exposed the claimant for more than one year or more, if such employer exists, ‘and if not ... the employer with the longest period of exposed employment of less than one year’s duration’ within the 300-week period prior to disability.” Id. at 297, 543 A.2d at 245 (quoting Barna v. Workmen’s Compensation Appeal Board (Rochester & Pittsburgh Coal Co.), 103 Pa.Commonwealth Ct. 536, 541-42, 520 A.2d 1234, 1237 (1987), appeal granted, 517 Pa. 627, 538 A.2d 879 (1988), appeal discontinued, No. 4 W.D. Appeal Docket 1988, February 8, 1988) (emphasis added).⁵

The referee concluded that Hoosier provided the longest period of employment during which Claimant was exposed to silica dust during the 300-week period from December 29, 1981 to September 29, 1987, the date of his disability. Claimant’s testimony on cross-examination reveals the following:

Q. Could you tell us in which of these did you have exposure to dust when you were doing drilling or blasting?

A. These two right here.

Q. H.P. Foley from May 2, 1983 to August 3, 1983. You did drilling there, and May 17, 1982 to October 22, 1982? A. Yes. Do you want me to explain that?

Q. Yes.

A. H.P. Foley, when I went to Hoosier in 1983, they opened up seventeen miles of power lines. They went ahead and dug so I drilled day in and day out, nothing else. When I worked for H.P. Foley, I worked for the digging crew. The only time, you might go a week and only have to drill once, if they hit rock once a week. You may have to drill every day for a week. That’s the way — drilling wasn’t continuous. That was both jobs. The job in 1982, there wasn’t nearly as much blasting in that job as there was in the one in 1983.

Q. The job in 1983, you have already testified, the one with Hoosier you drilled for two or three months starting in August, 1983?

A. Yes.

October 18, 1989 Hearing, N.T., pp. 17-18. Claimant further testified on redirect examination:

Q. In connection with your last job with Hoosier Engineering, you started to describe the density of the dust and so forth, were you referring to the Hoosier Job?

A. Yes.

Q. The most recent job where you did drilling?

A. I was referring to the job at Coraopolis in 1983. From September to, actually I was the dynamite man from September 8th to sometime in November when they brought in another dynamite man and changed my job status from dynamite to material man.

Q. That is where you were talking about the dense drilling?

A. Yes.

Q. The exposure day in and day out?

■ A. Yes.

Id. at 22.

It is within the province of the referee, in evaluating evidence, to accept or reject testimony of any witness in whole or in part. Kraemer v. Workmen’s Compensation Appeal Board (Perkiomen Valley School Dist.), 82 Pa. Commonwealth Ct. 469, 474 A.2d 1236 (1984). In reviewing the referee’s findings of fact, this Court is not to weigh evidence, but is merely to determine whether the record contains evidence which a reasonable person might find sufficient to support the referee’s findings. Lewis v. Commonwealth, 508 Pa. 360, 498 A.2d 800 (1985). Since the referee’s findings in this matter are supported by substantial evidence, they may not be disturbed on appeal. Accordingly, the order of the Board is affirmed.

ORDER

AND NOW, this 2nd day of February, 1993, the order of the Workmen’s Compensation Appeal Board dated July 26, 1991 is affirmed.

1 . Although the Board and the referee refer to Claimant's claim petition as filed under Section 108(n), which is an omnibus provision covering any occupational diseases not listed elsewhere, the parties stipulated that Section 108(k) is applicable to this matter. Section 108(k) lists the following as an occupational disease: “[s]ilicosis in any occupation involving direct contact with, handling of, or exposure to the dust of silicon dioxide.”

2 . This Court's scope of review is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Russell v. Workmen’s Compensation Appeal Board (Volkswagen of America), 121 Pa.Commonwealth Ct. 436, 550 A.2d 1364 (1988).

3 . The parties agree that Claimant was not employed within 300 weeks prior to his disability by any employer which exposed him for one year or more to the hazards.

4 . Claimant filed the claim petition only against Hoosier which had the right to join Foley as an additional defendant within fifteen days after the first hearing pursuant to 34 Pa.Code §§ 131.25-131.26, which was then in effect. Blue Bell Printing v. Workmen’s Compensation Appeal Board (Montgomery Publishing Co.), 115 Pa.Commonwealth Ct. 203, 539 A.2d 933 (1988). However, Hoosier failed to do so.

5 . Bama, cited as support by Hoosier, is inapposite because the issue was whether under Section 301(c)(2) of the Act which limits its applicalion to "the disability or death of an employe which results in whole or in part from the employe's exposure to the hazard of occupational disease after June 30, 1973 ..one must look beyond the 300-week period prior to the claimant’s disability to determine the employer in whose employment the claimant was last exposed to the hazards for a period of not less than one year.