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HALE v. METALWELD (03/20/68)

decided: March 20, 1968.

HALE, APPELLANT,
v.
METALWELD, INC.



Appeal from order of Court of Common Pleas No. 4 of Philadelphia County, March T., 1966, No. 537, in case of Paul N. Hale v. Metalweld, Inc. et al.

COUNSEL

Charles F. Quinn, with him Sheer & Mazzocone, for appellant.

Richard D. Harburg, with him Swartz, Campbell & Detweiler, for appellees.

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

Author: Watkins

[ 212 Pa. Super. Page 21]

This is an appeal in a workmen's compensation case by the claimant, Paul N. Hale, from the decision of the Court of Common Pleas No. 4 of Philadelphia County, affirming the order of the Workmen's Compensation Board denying benefits in a case involving silicosis on the ground that the claimant failed to sustain his burden of proof that he was exposed to the silica hazard.

In April of 1962, the claimant filed an occupational disease petition alleging total disability as a result of silicosis, which total disability began February 26, 1962. He was employed by the defendant company, Metalweld, Inc., in cleaning and grinding metal products from August, 1952 until February 26, 1962.

The referee awarded benefits; the Board reversed, finding as a fact that the claimant did not sustain his burden of proving exposure to the hazard of silicon dioxide during his employment with the defendant company and, as a matter of law that, as he failed to sustain this burden, he was not entitled to benefits.

The claimant appealed to the Court of Common Pleas No. 4 of Philadelphia County and Judge McDermott of that court remanded the record to the Board for further findings in accordance with his opinion. The defendant appealed to this Court and by Opinion Per Curiam, March 23, 1967, reported in 209 Pa. Superior Ct. 298, 228 A.2d 217 (1967), we said, "After thorough and independent study, we are of the opinion that the record before us is sufficient to permit the trial court to decide the case on the merits. The order of the trial court is therefore reversed, and

[ 212 Pa. Super. Page 22]

    the record is remanded to it for that purpose." The court below then affirmed the Workmen's Compensation Board and the claimant filed this appeal.

The occupational disease claim was brought under § 108(k) of the Occupational Disease Act, 77 PS § 1208(k), the pertinent parts of which read as follows: "The term 'occupational disease', as used in this act, shall mean only the following diseases: . . . (k) Silicosis, . . . in any occupation involving direct contact with, handling of, or exposure to the dust, . . . of silicon dioxide (SiO[2])."

The record discloses that he was engaged in the cleaning and grinding of metal products. The Board found that "the claimant did not sustain his burden of proving exposure to a hazard of silicon ...


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