Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1968, No. 1462, in case of Robert R. Morrison v. Allied Chemical Corporation et al.
Joseph J. Murphy, with him John F. Dougherty, Jr., Harris I. Weisbord, and Murphy, Veldorale, Weisbord & Dougherty, for appellants.
Charles F. Quinn, with him Sheer & Mazzocone, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J. Hoffman, J., would affirm on the able opinion of Judge Sloane.
[ 218 Pa. Super. Page 22]
This is an appeal in an occupation disease case from the decision of the Court of Common Pelas of Philadelphia reversing the Workmen's Compensation Board of Review and reinstating the award of the referee.
The claimant, Robert R. Morrison, filed the action against the defendant, Allied Chemical Corporation for benefits under Section 108(d) of the Occupational Disease Act, 77 P.S. § 1208(d). The referee awarded benefits; the Board reversed; the court below vacated the decision of the Board and reinstated the award of the referee. The claim is brought under Section 108(d) of the Act which reads as follows: "The term 'occupational disease,' as used in this act, shall mean only the following diseases: . . . (d) Poisoning by benzol, or by nitro, amino, or amino derivatives of benzol (dinitrobenzol, anilin, and others), or their preparations or compounds, in any occupation involving direct contact with, handling thereof, or exposure thereto."
The Board made the following pertinent findings of fact. "1. Claimant during the course of his employment as a 'junior chemist' with defendant from January, 1956, to October 26, 1963, was obliged to handle
[ 218 Pa. Super. Page 23]
various industrial chemicals, such as benzol, cumene, acetone, phenol, methylstryrene and others, which chemicals were identified by labels on the bottles which he used, and claimant was exposed to such chemicals. 2. As a result of his exposure to such chemicals, claimant suffered 'Industrial Chemical Poisoning (Benzol and Others)' from which he was totally disabled from October 27, 1963 to May 28, 1964, and undetermined partial disability thereafter to June 1, 1966. 3. Claimant failed to sustain his burden of proving that the industrial chemical poisoning, from benzol and other chemicals which he suffered, was peculiar to the occupation or industry in which he was employed while working for defendant, and not common to the general population."
The Board found also the following pertinent conclusions of law. "2. Since claimant failed to sustain his burden of proving that the industrial chemical poisoning, from benzol and other chemicals, which he suffered, was peculiar to the occupation or industry in which he was employed while working for defendant, and not common to the general population, he is not entitled to compensation."
What the Board found was that there was disability as a result of a disease and that he was exposed to a poison hazard in his particular place of employment, but that he failed to sustain his burden of proof that the industrial chemical poisoning from benzol and other chemicals was peculiar to the occupation or industry in which he was employed and not common to the general population. Whether it was peculiar to his occupation or industry and not common to the general public are questions of ...