Appeal, No. 111, April T., 1955, from judgment of Court of Common Pleas of Cambria County, March T., 1955, No. 407, in case of Andrew Milavech v. The Berwind-White Coal Mining Company and Berwind Exchange. Judgment affirmed. Appeal by defendants from award by Workmen's Compensation Board under Occupational Disease Act.
Robert G. Rose, with him, Francis A. Dunn, for appellants.
George Jerko, submitted a brief for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 180 Pa. Super. Page 196]
On this appeal from a judgment entered on an award under the Occupational Disease Act of June 21, 1939, P.L. 566, 77 P.S. sec. 1201 et seq. the defendant-employer and its insurance carrier raise the single question whether the claimant, Andrew Milavech, was exposed to the silica hazard for the requisite minimum time as provided in section 301(d) of the Act, 77 P.S. sec. 1401(d).
The referee and Board, sustained by the lower court, found these facts which are undisputed and not attacked by appellants here: Claimant was first employed by the defendant in 1914 when he began working at its mine at St. Michael, Pennsylvania. He continued this work and was exposed to the silica hazard from that time until March 1938. He was not again employed until he re-entered defendant's employ on June 8, 1949 at the same mine (again exposed to the silica hazard) where he worked until October 21, 1953 when he became totally disabled by anthraco-silicosis accompanied by secondary pulmonary emphsema. While this latter employment from 1949 to 1953 covers a period of four and one-third years, it is appellants' position that by reason of the sporadic working conditions in the coal industry and claimant's absences, he has not met his burden of showing that he "had an aggregate employment of at least four years in the Commonwealth of Pennsylvania during a period of eight years next preceding the date of disability, in an occupation having a silica ... hazard." Section 301(d) of the Act. It is undisputed that during the 1949 to
[ 180 Pa. Super. Page 1971953]
period claimant worked 717 days out of a total of 829 days during which defendant's mine operated. Percentage-wise, he worked 86% of the time the mine operated. His absences were due to illness.
Section 301(d) does not require a claimant to show an aggregate of four 365-day years in order to qualify. Cf. Kraesko v. Black Lick Mining Co., 175 Pa. Superior Ct. 455, 106 A.2d 665, allocatur refused 175 Pa. Superior Ct. XXV, where we held that a claimant who worked a total of 753 days during a period of 5 1/4 years, was entitled to compensation. If something less than four calendar years is required, how much less, and more particularly has this claimant met the minimal requirements? We believe that he has.
There is no dispute that claimant is disabled by reason of silicosis, nor that during his employment, not only from 1949 to 1953 but from 1914 to 1938, he was exposed to the silica hazard. Silicosis is an insidious thing, taking a number of years of constant inhaling of the minuscule silica dust particles to build up to a point where its victim is no longer capable of following his employment. Cf. Roschak v. Vulcan Iron Works, 157 Pa. Superior Ct. 227, 236, 42 A.2d 280, allocatur refused 157 Pa. Superior Ct. xxiii. Since the purpose of the Act is to provide compensation for those workmen who have been disabled because of the hazard, the essential consideration is one of cause and effect - the exposure must cause the disability. The Legislature, as a guide in so determining, and possibly to deter spurious claims, provided the four year minimum period as the line below which disability would not be considered as having resulted from ...