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Even though a claimant suspected her emphysema might have been related to her exposure to formaldehyde and other chemicals at work, the Workers’ Compensation Act’s discovery rule tolled the statute of limitations for filing a claim petition to her employer until a doctor told her that there was, in fact, a connection. The discovery rule, in Section 631 of the act, delays the tolling of the statute of limitations until 120 days after an employee knows or, “by the exercise of reasonable diligence, has reason to know” that his or her work injury is possibly employment-related. Although one dissenting justice on the Pennsylvania Supreme Court and the Workers’ Compensation Appeal Board (WCAB) believed that the claimant, Joan Sell, should have known of a possible connection between her condition and her job when she was diagnosed with emphysema, the majority in Sell v. Workers’ Compensation Appeal Board (LNP Engineering), said that was too much to ask of a lay person. “While we agree that the evidence reveals a belief on Sell’s part that formaldehyde adversely affected her well-being and shows that the chemicals to which she was exposed at work made her feel tired and sick, we do not agree that this evidence provides a basis for rejecting the WCJ’s finding [granting Sell benefits],” Justice Ralph Cappy said in the majority opinion. “This is because the discovery rule, as incorporated by the Legislature in Section 631, calls for more than an employee’s suspicion, intuition or belief; by its terms, the statute’s notice period is triggered only by an employee’s knowledge that she is injured and that her injury is possibly related to her job.” FORMALDEHYDE EXPOSURE Sell began working at LNP Engineering, a company that made and sold plastic pellets, in 1979. She became a quality control technician in 1980. In her position, she was exposed to hot fumes and dust from the processing of chemicals, including formaldehyde, Cappy said. Cappy said Sell was a smoker. From the age of 15 until about age 55, she smoked one pack a day, he said. Eventually, she cut down to 10 cigarettes per day. During the 1980s, Sell began experiencing health problems that she thought might be related to her job, Cappy said. She experienced coughing and tightness in her chest and contracted bronchitis once a year. She noticed that during the workweek, her energy level would decrease and her respiratory problems would increase, while the opposite was true on the weekends. In April 1992, Sell was diagnosed with double pneumonia. That November, she was hospitalized and diagnosed with emphysema, but the cause of the condition was not discussed. Sell did not return to LNP after the emphysema diagnosis. She looked for a physician with knowledge about the chemicals she was exposed to, but, finding none, she contacted the American Lung Association for help. In August 1993, Sell began seeing an allergist, John R. Cohn, who told her that the exposure to the chemicals at LNP had exacerbated her emphysema. On Aug. 31, Cohn gave Sell a note saying she could return to work with “cautious exposure to formaldehyde.” Sell gave the note to LNP’s head of engineering and explained how the formaldehyde had affected her and that she had trouble finding a physician who was familiar with the chemical. Cohn also sent a letter to LNP, saying Sell wanted to return to work and could if the company provided her with a special respirator. LNP refused to accommodate Sell and dismissed her, Cappy said. Sell saw a specialist in occupational medicine, Jessica Herzstein, on Nov. 9. The doctor agreed with Cohn that Sell’s condition was aggravated by the chemicals on her job and that she could return to work only if she had the respirator. On Jan. 12, 1994, Sell sent LNP a copy of Herzstein’s medical report and formally notified the company that she suffered from a disabling condition as the result of occupational exposure to hazardous chemicals. LNP DENIED COMPENSATION. Sell filed a petition for workers’ compensation benefits on March 21, claiming that she was disabled from Nov. 23, 1992, on. She contended that she notified the company of her injury on Aug. 31, 1993. A workers’ compensation judge found that Sell proved she suffered an aggravation of underlying chronic obstructive lung disease because of exposure to chemicals at work and that that aggravation contributed to her being unable to return to work. The WCJ also found that Sell notified LNP on Aug. 31, 1993, and that the notice was timely because she did not have reason to know about a correlation between her health problems and her occupation until Cohn gave her the note. The WCAB reversed, finding that Sell knew or should have known about the connection when she was hospitalized and diagnosed with emphysema. She should have filed her claim within 120 days of that date, the WCAB said. In an unpublished decision, a divided panel of the Commonwealth Court affirmed the WCAB. NATURE OF DISEASE The question looming before the justices, Cappy said, was whether Sell knew or should have known about the possible connection before Aug. 31, 1993. Sell came out the winner in the answer. Cappy said the court’s decision had a lot to do with the nature of Sell’s injury, a “slow and silent” disease. “The emphysema, due to cigarette smoking, manifested itself incrementally and developed over time. The exacerbation of the emphysema, the result of Sell’s work environment, also revealed itself in degrees,” Cappy said. “It caused Sell to experience symptoms like those that characterized the underlying disease. “While Sell was developing or suffering from the emphysema and the aggravation of the disease, she also succumbed to bouts of bronchitis or pneumonia. Thus, the substantial evidence relating to the course taken by Sell’s disease provides ample support for the WCJ’s determination that without the benefit of medical consultation, Sell neither knew, nor should have known, that from among all her respiratory difficulties, there was a compensable injury.” Cappy said a 1993 ruling from the court in Price v. WCAB (Metallurgical Research) validated the majority’s decision. The Price court said the WCAB’s statute of repose does not begin to run on total disability claims for occupational diseases until a claimant receives a medical diagnosis because such diseases are latent and difficult to assess. In Sell’s case, he said, the Commonwealth Court took her comments about the formaldehyde and the “ebb and flow” of her respiratory problems as proof that she was aware of the connection. Cappy said the lower court “made too great a leap” in that determination. ‘ABSOLUTES’ In a three-page dissenting opinion, Justice Stephen Zappala said he agreed with the WCAB that it was “clear” that Sell knew or should have known of the possible connection between her symptoms and her work environment as of the date she was diagnosed with emphysema. “That she did not have a medical diagnosis confirming her knowledge is not significant for purposes of the 120-day notice requirement of Section 311,” Zappala said. “The majority would seemingly require a claimant to know absolutely the causal relationship between an injury and its work-relatedness before the 120 days period of Section 311 is triggered. This, however, is not what the language of the provision states,” Zappala said. And Chief Justice John Flaherty filed a one-paragraph concurring opinion, saying that he signed on to the majority’s conclusion but not to its overall rationale. He agreed with Zappala’s statement that the majority seemed to indicate that a claimant should have “absolute” knowledge of a connection between job and disease before filing a claim petition. “I cannot join in that view,” he said. However, in Sell’s case, Flaherty said, she truly did not have knowledge of the connection before she saw Cohn. “Suspicion of a possible causality is less than knowledge of it,” he said.

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