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DEMASCOLA v. LANCASTER. (03/20/63)

March 20, 1963

DEMASCOLA, APPELLANT,
v.
LANCASTER.



Appeals, Nos. 241, 242, and 243, Oct. T., 1962, from order of Court of Common Pleas of Lancaster County, Jan. T., 1962, No. 14, in case of Albert DeMascola v. City of Lancaster et al. Decision reversed.

COUNSEL

W. Roger Simpson, for appellant.

F. Lyman Windolph, with him Windolph, Burkholder & Hartman, for appellees.

Wilson H. Oldhouser, Assistant Attorney General, with him David Stahl, Attorney General, for Commonwealth of Pennsylvania, Department of Labor and Industry, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Watkins

[ 200 Pa. Super. Page 367]

OPINION BY WATKINS, J.

The claimant, Albert DeMascola, in this occupational disease case, was employed by the City of Lancaster, as a full-time salaried fireman for fourteen years. During this time, as a fireman, he was exposed to heat and flame, excitement, extreme exertion, at times, weather and water, danger from collapsing buildings and other dangers concomitant to a fireman's occupation. He was on duty as a fireman on November 20, 1960, and on that date was engaged in fighting a fire. While pulling sections of a hose off a pumper, without assistance, he suffered very severe pain and had to stop his work. After resting awhile he carried a small hose to a point near the fire. After the fire he drove the fire truck to the fire house.

On March 14, 1961, he filed his claim for compensation. Under the law any award for occupational disease in this case would be paid 60% by the City of Lancaster and 40% by the Department of Labor and Industry, Commonwealth of Pennsylvania, out of the occupational disease fund. The Referee and the Board decided for the claimant; the court below reversed and set aside the award. The claimant appealed and the defendants-appellees are the City of Lancaster, its insurance carrier, Aetna Casualty and Surety Company, and the Commonwealth of Pennsylvania, Department of Labor and Industry.

[ 200 Pa. Super. Page 368]

The legislature added "diseases of the heart and lungs" to the list of compensable diseases enumerated in § 108 of the Pennsylvania Occupational Disease Act of June 21, 1939, P.L. 566, by the amendment of December 10, 1959, P.L. 1746, § 1, 77 PS § 1208(o), providing as follows: "(o) Diseases of the heart and lungs, resulting in either temporary or permanent total disability or death, after four years or more of service in the full time salaried occupation of fire fighting for the benefit or safety of the public, caused by extreme over-exertion in times of stress or danger or by exposure to heat, smoke, fumes or gases, arising directly out of the employment of any such firemen." This is the first case under this amendment to come up for appellate review and its interpretation requires a close examination into the history of the occupational disease law as it sheds light on the intent of the legislature in regard to occupational disease coverage for firemen.

In the original Act the diseases covered were set forth by name, such as, "poisoning by phosphorous", and then provided that the disease is compensable "in any occupation (emphasis writers') involving direct contact ...". It follows from this language that part of the burden of proof of the claimant would be proof that the occupation had an exposure to "poisoning by phosphorous".

The history of this Act also discloses that because of economic conditions a limitation, as to causation, was placed on silicosis, anthraco-silicosis, and asbestosis, so that § 301(e) of the Act, 77 PS § 1401(e), originally provided compensation for "total disability or death caused solely, (emphasis writers') ...". This however, did not apply to the other diseases listed in the Act. This was amended on January 2, 1952, and the clause was changed by deleting the word "solely" out of the section so that it provided for payment of

[ 200 Pa. Super. Page 369]

    compensation for total disability or death "caused by" the disease. After this amendment, without the qualifying condition, compensation is now granted for total disability or death when silicosis is a secondary cause.

This clearly shows that it was the legislative intent, at the time of the adoption of the Occupational Disease Act, to provide for compensation for disability and death caused by the diseases listed when they are a contributing or accelerating cause of the disability or death, except in the silicosis cases. The important factor is that there be a casual relationship of whatever character between the disease and the disability. Rohner v. Fox Products, 164 Pa. Superior Ct. 610, 67 A.2d 605 (1949). It follows, therefore, that it is the burden of the fireman to show only that a casual relationship existed between the heart disease and the disability and it is unnecessary that it be the sole cause of the disability.

The Supreme Court of Pennsylvania in McIntyre v. Lavino & Co., 344 Pa. 163, at pages 165, 166, 25 A.2d 163 (1942), makes an excellent statement concerning the occupational disease problem:

"Occupational diseases are, from a legal standpoint, peculiar in this - that they arise, not from an accident or event happening at a precise moment, but from a day by day exposure to unhealthful conditions over an extended period; the exact time of their origin is necessarily obscure and their insidious progress is not revealed until, frequently after a long interval, the disability which they create manifests itself. In the case of accidents compensable under the Workmen's Compensation Act [77 PS § 1 et seq.], the accident and the damage resulting therefrom, the cause and the effect, are usually determinable immediately and they ...


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