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PRINCE E. HUNTER v. PENN GALVANIZING COMPANY AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY AND COMMONWEALTH PENNSYLVANIA OCCUPATIONAL DISEASE FUND (05/08/74)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 8, 1974.

PRINCE E. HUNTER, APPELLANT,
v.
PENN GALVANIZING COMPANY AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY AND COMMONWEALTH OF PENNSYLVANIA OCCUPATIONAL DISEASE FUND, APPELLEES

Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Prince E. Hunter v. Penn Galvanizing Company and Pennsylvania Manufacturers' Association Insurance Company, No. 3214 September Term, 1971.

COUNSEL

Cassandra Maxwell Birnie, for appellant.

Howard M. Ellner, with him John F. McElvenny and James Diefenderfer, for appellees.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 13 Pa. Commw. Page 481]

Prince E. Hunter, the claimant in this case under The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, 77 P.S. § 1201 et seq., has appealed from an order of the Court of Common Pleas of Philadelphia County affirming a decision and order of the Workmen's Compensation Board denying compensation. The Board vacated a referee's findings, substituted its own and reversed an award made by the referee.*fn1

[ 13 Pa. Commw. Page 482]

Mr. Hunter was employed for 26 years by Penn Galvanizing Company in its steel processing plant. His work was conducted in a factory where steel sheets were cleaned by sandblasting and additionally cleaned and "pickled" by their immersion in large tanks containing hot water mixed variously with carbolic acid, cyanide, lime, caustic soda and possibly other substances. The sandblasting produced dust and the immersion of the plates caused fumes. On July 12, 1968 Hunter became ill while on the job and has not worked since. He has been hospitalized several times since July 1968 and is being treated for pulmonary complaints.

The claimant's treating physician testified that the claimant suffers from "pneumonitis, probable silicosis, bilateral diffused interstitial pulmonary fibrosis, compensatory emphysema and arteriosclerotic cardio-vascular disease, with early evidence of heart strain, cor pulmonale."*fn2 He expressed the opinion that "[t]here is a direct causal relationship between the . . . years

[ 13 Pa. Commw. Page 483]

    of working in an environment of sandblasting, acid and other fumes and his present pneumoconiosis*fn3 and pulmonary fibrosis."

The defendants' examining physician, a board certified internist with special training in pulmonary diseases, found the claimant to have "a slight process of fibrotic scarring in both lungs" and "coronary artery disease." He diagnosed the claimant's condition as "pulmonary fibrosis, cause unknown" and as "[A] natural disease process and definitely not related to the exposure to the claimant's occupational environment." This expert indicated that the claimant's fibrosis could be the result of many causes including air pollution, carbon dioxide in the air, exposure to virus, fungus, or numerous diseases. He held the opinion that the claimant was not suffering from pneumoconiosis because, as both doctors agreed, the claimant's condition of pulmonary fibrosis improved from time to time, which does not occur with pneumoconiosis. This doctor also believed that the claimant's pulmonary problems alone caused little disability.

The claimant's evidence did not establish that he was afflicted with any of the occupational diseases specifically named in section 108 of the Act, 77 P.S. § 1208.*fn4 He was, therefore, required to bring his case within subsection (n) of 108 which names as a compensable

[ 13 Pa. Commw. Page 484]

    occupational disease: "(n) All other occupational diseases (1) to which the claimant is exposed by reason of his employment, and (2) which are peculiar to the industry or occupation, and (3) which are not common to the general population. . . ."

As we have noted, the claimant's proofs consisted of his doctor's opinion that his undoubted condition of pulmonary fibrosis was caused by the conditions of his employment. Unfortunately, there was no attempt made by the claimant to tell which of the asserted hazards, dust or fumes, or both, was responsible, or to describe either what kind of dust or fumes were present or how or why they or either of them caused the claimant's malady. On the other hand, the Board had before it the defendants' opinion evidence that the claimant's condition was not caused by dust (that is, was not pneumoconiosis) and that it was indeed a condition common to the general population in that it could have been caused by a wide variety of things including general air pollution, viruses, bacteria and a number of diseases. The Board's acceptance of the defendants' and rejection of the claimant's medical evidence may not be disturbed by us. McKinney Manufacturing Corp. v. Straub, 9 Pa. Commonwealth Ct. 79, 305 A.2d 59 (1973).

The claimant has not cited in support of his position Utter et al. v. Asten-Hill Mfg. Co., 453 Pa. 401, 309 A.2d 583 (1973). Because that case is so recent and important to the consideration of a section 108(n) claim, we note that it holds that while lung cancer is a disease common to the general public, it nevertheless can be an occupational disease as defined by 108(n) if it is peculiar to the claimant's occupation by its causes and the characteristics of its manifestation. The instant record does not, as did that of Utter, reveal the claimant's condition of pulmonary fibrosis as one peculiar in cause and manifestation to the claimant's

[ 13 Pa. Commw. Page 485]

    occupation. Indeed, the claimant's evidence that his condition was the result of any occupational hazard was refuted and the refutation accepted by the Board.

Order affirmed.

Disposition

Affirmed.


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