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BRASACCHIO v. PENNSYLVANIA HIGHWAY DEPARTMENT (09/15/66)

decided: September 15, 1966.

BRASACCHIO, APPELLANT,
v.
PENNSYLVANIA HIGHWAY DEPARTMENT



Appeal from order of Court of Common Pleas of Lackawanna County, Sept. T., 1965, No. 580, in case of Thomas J. Brasacchio v. Pennsylvania Highway Department et al.

COUNSEL

Joseph E. Gallagher, with him Ralph G. Mastrianni, and O'Malley, Morgan, Bour & Gallagher, for appellant.

Charles J. Bufalino, Jr., Special Assistant Attorney General, with him Clyde M. Hughes, Jr., Assistant Attorney General, and Edward Friedman, Acting Attorney General, for Commonwealth, appellee.

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

Author: Wright

[ 208 Pa. Super. Page 213]

Thomas J. Brasacchio seeks compensation under The Pennsylvania Occupational Disease Act of June 21, 1939, P. L. 566, 77 P.S. 1201 et seq. On July 2, 1964, he filed a claim petition alleging that he became totally disabled from silicosis on June 15, 1964, as a result of employment since 1921 in occupations having a silica

[ 208 Pa. Super. Page 214]

    hazard. The Referee made an award payable entirely by the Commonwealth. The Workmen's Compensation Board sustained the Commonwealth's appeal, and entered an order of disallowance. The Court of Common Pleas of Lackawanna County affirmed the decision of the Board. Claimant has appealed.

The record discloses that, from 1921 to 1955, claimant was employed by various coal companies as a miner of anthracite coal. It is not disputed that he was exposed to a silica hazard during such employment. It is also not disputed that he is now totally disabled as a result of silicosis. From 1956 to 1963 claimant was employed by the Pennsylvania Department of Highways as a laborer. The sole question before us is whether the Board erred in refusing to find that claimant was exposed to a silica hazard during this latter period of employment. No testimony was presented on behalf of the Department of Highways or the Commonwealth, reliance being placed by defendants upon the insufficiency of claimant's evidence. The testimony which claimant adduced is summarized by the Board as follows:

"The claimant, age 66, was employed by four different coal companies from 1921 to 1955, during which time he worked inside the anthracite coal mines and was continuously exposed to a silica hazard. He was last employed as a laborer by defendant, Pennsylvania Department of Highways, from June 6, 1956 to May 26, 1963.

"Claimant testified that his duties with the Pennsylvania Department of Highways involved construction work, building bridges and razing old bridges; and that in the performance of the work he operated a jackhammer, and at times in the drilling of foundations, the drilling was done in places as much as six feet below the ground. He related that the drilling of rock caused considerable dust; and that after drilling in low

[ 208 Pa. Super. Page 215]

    places, after five to ten minutes, it was necessary to stop in order to clean his face, nose and throat. He also stated that, in knocking down old bridges, the jackhammer was ...


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