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JOHN F. MOYER v. BROCKWAY CLAY COMPANY AND COMMONWEALTH PENNSYLVANIA OCCUPATIONAL DISEASE FUND (08/13/74)

decided: August 13, 1974.

JOHN F. MOYER, APPELLANT,
v.
BROCKWAY CLAY COMPANY AND COMMONWEALTH OF PENNSYLVANIA OCCUPATIONAL DISEASE FUND, APPELLEES



Appeal from the Order of the Court of Common Pleas of Jefferson County in case of John F. Moyer v. Brockway Clay Company and Commonwealth of Pennsylvania Occupational Disease Fund, No. 15 January Term, 1972 M.D.

COUNSEL

R. Edward Ferraro, for appellant.

Robert F. Pontzer, with him Pontzer and Pontzer, for appellee, Brockway Clay Company.

J. Richard Mattern, Assistant Attorney General, for appellee, Commonwealth.

Judges Crumlish, Jr., Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 14 Pa. Commw. Page 611]

John F. Moyer (claimant) was employed by the Brockway Clay Company (Brockway) from 1933 to 1936 and again from 1938 to 1969. Brockway was engaged in the manufacture of clay pipe, and the claimant was a department supervisor, specifically involved in the grinding and the mixing of the clay. On January 22, 1970, the claimant filed a claim petition seeking benefits pursuant to The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq., claiming that he was totally disabled as a result of exposure to a silica hazard. A referee, the Workmen's Compensation Appeal Board (Board) and the Court of Common Pleas of Jefferson County all denied compensation. The claimant has now brought this appeal.

Where, as here, we are reviewing a decision of the Board which is adverse to the party having the burden of proof, we must determine whether or not its findings are consistent with each other and with its conclusions

[ 14 Pa. Commw. Page 612]

    of law and its order, and can be sustained without a capricious disregard of competent evidence. Billet v. Keystone Roofing Manufacturing Company, 6 Pa. Commonwealth Ct. 23, 291 A.2d 921 (1972). "[Q]uestions of credibility are for the Board, and it is the Board which should make the ultimate determination with respect to conflicting testimony." Allegheny Pittsburgh Coal Company v. Ostroski, 12 Pa. Commonwealth Ct. 1, 4, 315 A.2d 895, 897 (1974).

The claimant here alleges that he is disabled as the result of an occupational disease, specifically that defined by Section 108(k) of the Occupational Disease Act, 77 P.S. § 1208(k) as: "Silicosis, anthraco-silicosis or coal worker's pneumoconiosis . . . in any occupation involving direct contact with, handling of, or exposure to the dust of anthracite or bituminous coal and/or dust of silicon dioxide (SiO[2])." Proof of the claimant's disability as well as of a silica hazard in his employment is an essential element of his case. It is provided in Section 301(f) of the Occupational Disease Act, 77 P.S. § 1401(f): "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." In considering this section, the Superior Court in Metz v. Quakertown Stove Works, 156 Pa. Superior Ct. 70, 75, 39 A.2d 534, 536 (1944), commented: "It will be noted that the employee is not called upon, in order to get the benefit of this rebuttable presumption to show that the particular factory or plant in which he worked was a silica hazard, but only that the 'occupation or industry' was one in which silicosis was a hazard, leaving it then to the employer to show, if possible, by facts and circumstances within its knowledge and control, that its particular factory

[ 14 Pa. Commw. Page 613]

    or plant had been so conducted or carried on as to avoid or ...


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