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BLACKBURN v. PENNSYLVANIA TURNPIKE COMMISSION ET AL. (09/16/65)

decided: September 16, 1965.

BLACKBURN
v.
PENNSYLVANIA TURNPIKE COMMISSION ET AL., APPELLANTS



Appeals from judgment of Court of Common Pleas of Luzerne County, Oct. T., 1964, No. 2632, in case of Lottie Blackburn, widow of David Blackburn, deceased, v. Pennsylvania Turnpike Commission et al.

COUNSEL

James P. Harris, Jr., for appellants.

Joseph P. Olexy, with him Neville B. Shea, for claimant, appellee.

Charles J. Bufalino, Jr., for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Flood, Jacobs, and Hoffman, JJ. Opinion by Watkins, J.

Author: Watkins

[ 206 Pa. Super. Page 224]

In this workmen's compensation case the Pennsylvania Turnpike Commission and its insurance carrier, the defendants-appellants, appealed from the order of the Court of Common Pleas of Luzerne County reversing the Workmen's Compensation Board and directing judgment to be entered in favor of Lottie Blackburn, the claimant-appellee, and against the appellants, for compensation benefits.

The claimant's husband, David Blackburn, died on April 21, 1960. He died as a result of extreme exposure to calcium chloride on January 14, 1960. This exposure occurred when the decedent was helping unload the material from a large trailer while he was employed by the Pennsylvania Turnpike Commission. In the course of this employment he suddenly found himself enveloped in a cloud of dust from the salt compound. He became ill immediately but remained on the job that night. He never returned to work from the time of this incident and his death on April 21, 1960.

He was hospitalized between January 14 and April 21, 1960 for some time in the Geisinger and University of Pennsylvania hospitals. It was the conclusion of the physicians involved that his death was a direct result of severe allergic reaction to extensive exposure to the calcium chloride on January 14, 1960.

Subsequent to the exposure the decedent on January 29, 1960 entered into a compensation agreement with his employer and its compensation carrier. The agreement provided for the payment of total disability

[ 206 Pa. Super. Page 225]

    as of January 17, 1960 because claimant "in snow removal process suffered a severe chemical contact dermatitis developed from an allergy to calcium chloride and sodium chloride that is utilized in snow removal". This was fully executed but was never filed and no payments were ever made. It was dated January 29, 1960. It can be inferred that because of this agreement no action of any kind was instituted during his lifetime.

After his death, the claimant-widow on June 7, 1960 filed a claim on behalf of herself and her two minor children. She was not then represented by counsel. The form of the claim petition was selected and filled out by an employee of the Workmen's Compensation Bureau. It was an original death claim. The form submitted was in a form of a "claim petition for compensation by dependents for death resulting from silicosis, anthracosilicosis and asbestosis", under the "Occupational Disease Act". A hearing was held on August 28, 1961 by a referee. The claimant, having engaged counsel, filed an "amended claim petition" requesting that the claim be changed from one under the Occupational Disease Act to one under the Workmen's Compensation Act. The ...


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