Appeal from order of Court of Common Pleas of Luzerne County, May T., 1965, No. 1249, in case of Levi T. Crews v. Carey, Baxter & Kennedy et al.
John H. Hibbard, for appellant.
Charles J. Bufalino, Jr., Special Assistant Attorney General, with him Clyde M. Hughes, Jr., Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellee.
James P. Harris, Jr., for appellees.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Watkins, J. Dissenting Opinion by Montgomery, J. Wright, J., joins in this dissent.
[ 207 Pa. Super. Page 462]
This is an appeal from the order of the Court of Common Pleas of Luzerne County affirming the decision of the Workmen's Compensation Board denying compensation to the claimant, Levi T. Crews, on the ground that he was not employed in an occupation having a silica hazard.
The claimant was employed by the anthracite strip mining firm of Carey, Baxter & Kennedy from 1931 to May 31, 1963. He ran draglines and shovels; he loaded rock; he was engaged in blasting and loading; he was engaged in casting overburden; he loaded coal and rock; he did mechanical work in the warehouse; he was a mucker, loading rock after it was drilled and blasted; he did tunneling work; as his health condition deteriorated he went from operating a shovel to mechanical work in the warehouse. The medical testimony is clear that he was totally disabled as the result of anthracosilicosis on January 7, 1964.
[ 207 Pa. Super. Page 463]
Claimant's work record was not disputed and no evidence was offered by any party that he was or was not exposed to silicon dioxide while employed by the defendant. The referee found that the claimant was exposed to a silica hazard from 1931 to May 31, 1963, while employed by the defendant. The referee also concluded that he was entitled to compensation and that defendant company was liable for 60% of the compensation and the Commonwealth for 40%. On appeal, the board determined that the claimant was not so exposed from 1944 to May 31, 1963, and that he had failed in his burden of proof and so denied compensation. On appeal, the court affirmed the decision of the board.
The board and the court below indicated that the decision was controlled by the case of Scott v. United States Steel Corporation, 203 Pa. Superior Ct. 459, 201 A.2d 243 (1964). This was error. The Scott case is clearly distinguishable. It was a claim brought under § 108(n) of the Occupational Disease Act, as amended, February 28, 1956, P. L. (1955), 1095, § 1, 77 PS § 1208(n), which is the catch-all section of the Occupational Disease Act. Under this section which covers diseases not identified in the act as occupational diseases, the burden of proof on the claimant is a heavy one. It is necessary that he must sustain the burden of proving by a preponderance of the evidence that the disease in question, in the Scott case, lung cancer, was peculiar to the industry and not common to the general public, i.e., establishing it as an occupational disease within § 108(n). In the Scott case the claimant failed to sustain this burden.
The instant case is brought under § 108(k) of the Act, supra, 77 PS § 1208(k), which reads as follows: "Silicosis or anthraco-silicosis (commonly known as Miner's Asthma and hereinafter referred to as anthraco-silicosis) in any occupation involving direct ...