Appeal, No. 300, Oct. T., 1958, from judgment of Court of Common Pleas of Northampton County, April T., 1958, No. 13, in case of Frank Balash v. Treadwell Engineering Company et al. Judgment affirmed.
Wilson H. Oldhouser, Assistant Attorney General, with him Milton J. Goodman, David C. Harrison, Deputy Attorney General, and Thomas D. McBride, Attorney General, for Commonwealth of Pennsylvania, Department of Labor & Industry, appellant.
A. Albert Gross, with him Gross & Herster, for defendants, employer and insurer, appellees.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 187 Pa. Super. Page 632]
Claimant's employment with the defendant Treadwell Engineering Company in Pennsylvania began in 1942 and continued until August 25, 1956. For approximately 14 months immediately prior to the date in 1942 when claimant first went to work for the defendant, he was employed by Taylor-Wharton Iron and Steel Company at High Bridge in New Jersey. He was a laborer throughout the terms of both employments. During the 14 months in New Jersey he worked in his employer's foundry handling dry and dusty sand. He performed identical work shoveling dusty sand in defendant's foundry, until January 31, 1954 when he was assigned to sand blasting castings, followed by operations on an emery wheel. In every phase of claimant's work wherever performed in Pennsylvania and New Jersey there was dust in the air and throughout his employment beginning in New Jersey and continuing with the defendant in Pennsylvania he was exposed to a silica hazard. It is admitted that he had become totally disabled from silicosis when he quit his work on August 25, 1956. And it must be conceded that he is entitled to compensation for total disability under The Pennsylvania Occupational Disease Act of June 21, 1939, P.L. 566, as amended by the Act of February 28, 1956, P.L. (1955) 1095, 77 PS § 1201 et seq. The dispute here therefore is as to where the liability to pay the award rests. The referee, the Board and the lower court all concluded that the Commonwealth of Pennsylvania alone was liable.
[ 187 Pa. Super. Page 633]
Section 308(a) of The Pennsylvania Occupational Disease Act, as amended, supra, 77 PS § 1408(a) provides: "When compensation is awarded because of disability or death caused by silicosis, ... which developed to the point of disablement only after an exposure of five or more years, the compensation for disability or death due to such disease shall, except as otherwise provided in subsection (g) of section 301, be paid jointly by the employer and the Commonwealth and the employer shall be liable for sixty per centum of the compensation due and the Commonwealth forty forty per centum." (Italics added). Claimant's total disability, under the findings in this case, supported by undisputed testimony, began on August 25, 1956. And since the proportionate liability of the employer and the Commonwealth is determined as of that date (Pekorofsky v. Glen Alden Coal Co., 171 Pa. Superior Ct. 97, 89 A.2d 890) the Commonwealth in this appeal contends that its liability cannot exceed 40% of the compensation due and that 60% must be paid by the employer.
The liability of the employer for the payment of 60% of the compensation for disability for occupational disease under § 308(a) of the Act was specifically made subject to the operation of § 301(g), 77 PS § 1401, as amended, which provided: "... when a claimant alleges that disability or death was due to silicosis, anthraco-silicosis, asbestosis or any other occupational disease which developed to the point of disablement only after an exposure of five or more years, the only employer liable shall be the last employer in whose employment the employe was last exposed to the hazard of such occupational disease during a period of six months or more: And provided further, That in those cases where disability or death is not conclusively proven to be the result of such last exposure, all compensation
[ 187 Pa. Super. Page 634]
shall be paid by the Commonwealth ..." (Italics added).
It is generally recognized that silicosis by its very nature is a disease which progresses, from its incidence on exposure to the hazard, over a period of years to the point of disablement. McIntyre v. Lavino & Co. et al., 344 Pa. 163, 25 A.2d 163. The claimant's work for the Taylor-Wharton Company in New Jersey had to do exclusively with the handling of dry moulder's sand. The air in the foundry was dusty and he was exposed to a silica hazard throughout his employment there. In his employment with the defendant on every job to which he was assigned he was also exposed to the same hazard. The medical testimony is that claimant, on and after August 25, 1956, was totally disabled from silicosis in its final stage, as a result of the exposures and there was no testimony that the incidence of the disease did not occur during the New Jersey employment. The referee from a realistic ...