Appeal from order of Court of Common Pleas of IIuntingdon County, Sept. T., 1963, No. 13, in case of Frances Chilcote v. Charles R. Leidy et al.
Horace J. Culbertson, for appellant.
Donald R. Mikesell, Special Assistant Attorney General, with him Clyde M. Hughes, Jr., Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellee, submitted a brief.
No argument was made nor brief submitted for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Watkins, J.
[ 207 Pa. Super. Page 347]
This is an appeal from the order of the Court of Common Pleas of Huntingdon County, dismissing the appeal of the claimant, Emory H. Chilcote, since deceased, from the decision of the Workmen's Compensation Board denying benefits for occupational disease on the ground that his last employment in which he was exposed to the hazard was more than four years before his disability.
The claimant was employed in brick plants from 1919 to 1954 when it is admitted that he was exposed to a silica hazard. He worked as a painter from the spring of 1956 until December 8, 1960, and became totally disabled on December 9, 1960.
The referee and the board found that he was not exposed to a silica hazard from 1956 to December 8, 1960, and disallowed compensation. On appeal, the court below remanded the record to the Workmen's Compensation Board for the sole reason that appellant's counsel had been denied the opportunity to make oral argument before the board. The board that first decided the case was composed of Hugo J. Parente, John T. Welsh and Eugene J. Mirarchi; when it was remanded the board
[ 207 Pa. Super. Page 348]
had changed and was composed of Edwin M. Kosik, Wilbur C. Creveling, Jr., and Thomas P. Geer. After oral argument, the new board, for the same reason, disallowed compensation.
"The burden of proof of the silica hazard is an essential part of the claimant's case, as also, is proof of the necessary aggregate employment in an occupation or industry having a silica hazard. If the disease is a hazard of the claimant's occupation or industry, the claimant would have been under no burden to go further with proof of causation and the burden of going forward with proof would shift to the defendant to show the absence of causal connection. Metz v. Quakertown Stove Works, 156 Pa. Superior Ct. 70, 39 A.2d 534 (1944). However, in this case, there was no proof that his occupation was one in which silicosis was a hazard, so the rebuttable presumption never arose." Webster v. Grove City College, 198 Pa. Superior Ct. 475, 181 A.2d 924 (1962).
In the instant case it was the burden of the claimant to prove that he was exposed to a silica hazard in his employment. Section 301(c) of the Occupational Disease Act of 1953, P. L. 1389, as amended, 77 PS § 1401(c), reads as follows: "Compensation for the occupational diseases enumerated in this act shall be paid only when such occupational disease is peculiar to the occupation or industry in which the employe was engaged and not common to the general population. Wherever compensable disability or death is mentioned as a cause for compensation under this act, it shall mean only compensable ...