Appeal from order of Superior Court, Oct. T., 1967, No. 1164, affirming 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.
Charles F. Quinn, with him Sheer & Mazzocone, for appellant.
Richard D. Harburg, with him Swartz, Campbell & Detweiler, for appellees.
Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen would vacate and remand. Dissenting Opinion by Mr. Chief Justice Bell.
In April of 1962, Paul Hale (appellant) filed a claim petition under the Pennsylvania Occupational Disease Act,*fn1 alleging that he was totally disabled from silicosis after being employed as a sandblaster by Metalweld, Inc., from 1952 to April 3, 1962.
At the Referee's hearing, appellant introduced evidence tending to prove that he is now suffering from silicosis, that he was employed by Metalweld cleaning and grinding metal products and that he used a substance called "Black Diamond" in his blaster and carborundum as a grinding medium. At a subsequent hearing, appellant testified that he had secured a sample of "Black Diamond" from Metalweld's supplier and had had it chemically analyzed. The research chemist who analyzed the "Black Diamond" testified that the particles were slightly larger than grains of sand and that they contained 41.26% free silica by weight. By way of rebuttal, Metalweld presented testimony that appellant is not now totally disabled and argued that appellant failed to prove that he was exposed to silicon dioxide dust in the course of his employment. As far as the sample of "Black Diamond" was concerned, Metalweld urged that appellant had failed to prove that it was identical to the substance used in his blaster, that particles larger than grains of sand will not cause silicosis, and that appellant had failed to prove that "Black Diamond" would disintegrate and release silicon dioxide dust into the air during the sandblasting process.
After the series of hearings, the Referee found in favor of the appellant. The Workmen's Compensation Board reversed, holding that appellant had failed to prove that he was employed in an occupation with a silica hazard or that there was free silica in the air at Metalweld's plant. The Philadelphia Court of Common Pleas, per Judge McDermott, remanded the case to the Board for a clarification of its opinion. Metalweld appealed this order to the Superior Court which held in a per curiam opinion that the record was sufficient for an adjudication on the merits. 209 Pa. Superior Ct. 298, 228 A.2d 217 (1967). Judge McDermott
then affirmed the Board on the merits. The Superior Court unanimously affirmed in an opinion by Judge Watkins, 212 Pa. Superior Ct. 20, 239 A.2d 887 (1968). We granted allocatur.
Under Section 301(c) of the Occupational Disease Act, a claimant must prove that he is disabled by an injury which is peculiar to the occupation or industry in which he is employed and not common to the general public. After passing this hurdle, the claimant can then shift the burden of proof if he can prove that the disease is a hazard of his particular occupation.
Section 301(f) of the Act states: "If it be shown that the employe, at or immediately before the date of disability, was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed that the employe's occupational disease arose out of and in the course of his employment but this presumption shall not be conclusive."*fn2 In interpreting this provision, the Superior Court has held that the claimant need not prove that there was a silica hazard in the particular factory or plant in which he was employed but merely that there is a hazard in the occupation or industry as a whole. The employer must then come forward with evidence to prove that the claimant was not exposed to a silica hazard in the particular plant or factory. Crews v. Carey, 207 Pa. ...