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POWELL v. TAYLOR. (03/24/55)

March 24, 1955

POWELL, APPELLANT,
v.
TAYLOR.



Appeal, No. 9, Feb. T., 1954, from order of Court of Common Pleas of Lackawanna County, March T., 1953, No. 870, in case of David E. Powell v. James F. Taylor. Order affirmed.

COUNSEL

Milton J. Kolansky, for appellant.

Harry P. O'Neill, Jr., with him Frank M. Walsh, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Ross

[ 177 Pa. Super. Page 648]

OPINION BY ROSS, J.,

This is an appeal by the claimant in a workmen's compensation case. The compensation authorities, affirmed by the court below, refused an award on the basis that the claimant, David E. Powell, had not shown that he had suffered an accident within the meaning of our Workmen's Compensation Act.

The claimant was employed by the defendant as a carpenter for nine months in 1943, all of 1944 and 1945, and from January 1, 1946 to June 18, 1946, and during this employment was using "lumber that had stood in the lumber yards for a long period of time". He described this lumber as being dusty and moldy, requiring brushing and scraping before use, and that he breathed and inhaled this material which caused him to cough and produce a black substance. In March 1946 his chest and throat became infected; he developed a cough, became ill and was totally disabled on June 18, 1946. Claimant was treated by four physicians up to July 5, 1946, when he was examined by Dr. E. L. Kiesel, who appeared as claimant's only medical witness.

Dr. Kiesel testified that tests of claimant's sputum revealed pus cells and yeast clumps; that he diagnosed claimant's condition as a yeast infection of the lungs; that in his opinion claimant suffered from moniliasis, a disease caused by monilia, a yeast spore or fungus found in decayed vegetable matter; that he attributed the source of the infection to the handling of old lumber in the course of employment which probably had monilia on it. There is considerable confusion throughout

[ 177 Pa. Super. Page 649]

    the testimony of Dr. Kiesel on the question of whether moniliasis is a disease which can result from a single contact with the monilia bacilli or whether it results only from exposure over a period of time, but his final answer to the question would appear to be: "I don't think any man can say whether it was a single or a continued exposure that did it."

In denying compensation the Board found, inter alia: "7. That the claimant is suffering from a chest infection, the nature and cause of the infection not being defined and determined by competent, credible and convincing medical evidence." Notwithstanding such finding, if we were to assume that claimant's disability results from a yeast infection of his lungs, such infection, under the circumstances of this case, could not be termed an accident within the meaning of the Act.

Billo v. Allegheny Steel Co., 328 Pa. 97, 195 A. 110, was an action of trespass brought by an employe against his employer to recover damages for silicosis alleged to have been contracted by plaintiff while working at defendant's plant. The action was brought before the enactment of the Occupational Disease Act. The employer took the position that the action was barred by the Workmen's Compensation Act, contending that silicosis causes violence to the physical structure of the body and that therefore an employe who contracts it is "injured" within the meaning of section 301 of the Workmen's ...


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