Appeal from order of Court of Common Pleas of Philadelphia County, Oct. T., 1967, No. 1176, in case of Bertha Walker v. Chestnut Hill Hospital et al.
Frederick W. Anton, 3rd, for appellants.
Daniel M. Rendine, Special Assistant Attorney General, with him Clyde M. Hughes, Jr., Assistant Attorney General, and William C. Sennett, Attorney General, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J.
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This is a workmen's compensation appeal in which an award of benefits was made to the claimant, Bertha W. Walker, who was found by the referee and the Board to be totally disabled as the result of exposure to the occupational disease of tuberculosis while employed as a nurse by the Chestnut Hill Hospital, the defendant-appellant.
The said defendant-appellant and the Pennsylvania Manufacturers' Association Insurance Company, the hospital's insurance carrier, also a defendant-appellant, appealed from the decision of the Board contending that the order of the Board against the defendant-employer only was error and should have been against the defendant-employer and the Commonwealth of Pennsylvania jointly under Section 308(a) of the Occupational Disease Act of 1939, 77 P.S. 1408(a) on a 60% to the employer and 40% to the Commonwealth of Pennsylvania basis, in that the exposure to the disease was for a period of more than five (5) years. The court below affirmed the award as made by the Board.
Tuberculosis was not one of the original occupational diseases enumerated by the Act. It was included by an amendment in the Act of 1951, July 19, P. L. 1089, Paragraph 1, 77 P.S. 1208(m), which reads as follows: "The term 'occupational disease', as used in this act, shall mean only the following diseases: . . . (m) Tuberculosis in the occupation of nursing in hospitals or sanataria involving exposure to such diseases."
The passing of the Occupational Disease Act met with great opposition among the hazardous occupation
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employers of Pennsylvania. It was met with lawsuits and collective bargaining disputes before finally being accepted by industry. One of the ways in which industry was persuaded to accept it was the inclusion in the act of certain payments by the Commonwealth. This concern of the legislature was brought about by the fear that the financial condition of certain industries having occupational hazards might be jeopardized. The payments by the Commonwealth continued to be included in the act although amendments were made changing the percentages. The act presently provides for payment by the Commonwealth of 40% and the employer 60% of the award under conditions set forth in the act.
The facts in this case, as found by the compensation authorities, show that this claimant was exposed to the hazard of contracting the occupational disease of tuberculosis more than five (5) years before disability while employed as a nurse by the defendant-appellant hospital.
The facts as found by the compensation authorities further show that while the claimant was so exposed to the hazard for more than five (5) years, the claimant developed tuberculosis during the period from ...