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COMMONWEALTH PENNSYLVANIA v. LEE S. BROWN AND STRICK TRAILER CO. (12/12/74)

decided: December 12, 1974.

COMMONWEALTH OF PENNSYLVANIA, BUREAU OF OCCUPATIONAL INJURY AND DISEASE COMPENSATION, APPELLANT,
v.
LEE S. BROWN AND STRICK TRAILER CO., APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Commonwealth of Pennsylvania, Bureau of Occupational Injury and Disease Compensation v. Lee S. Brown and Strick Trailer Company, No. 5506 August Term, 1973.

COUNSEL

Joseph F. Strain, Counsel, with him Samuel C. Vary, Assistant Attorney General, for appellant.

Jack M. Myers, with him Zack, Myers and Atkinson, for appellee, Lee S. Brown.

R. D. Harburg, with him Swartz, Campbell & Detweiler, for appellee, Strick Trailer Co.

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

Author: Crumlish

[ 16 Pa. Commw. Page 150]

The Bureau of Occupational Injury and Disease Compensation (Commonwealth) appeals from an order of the Court of Common Pleas of Philadelphia County which affirmed a decision of the Workmen's Compensation Appeal Board holding the Commonwealth solely liable for disability compensation payable to Lee S. Brown (Claimant) under the Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq. (ODA).

Claimant was employed as a welder by Strick Trailer Company (Strick)*fn1 for approximately six years, his last day of work in this position being December 23, 1966. For most of these six years, Claimant's job consisted of welding painted and unpainted dry metal parts. In July or August of 1966, the welding included wet painted parts which gave off a noxious odor and fumes when fired. Although Claimant had headaches, and general nausea previously from the fumes which were incidental to dry welding, these reactions worsened after he started welding wet painted parts. On December 27, 1966, Claimant was hospitalized for pronounced nausea and fluid loss due to what was subsequently

[ 16 Pa. Commw. Page 151]

    diagnosed as complete renal or kidney failure. Following successful dialysis, Claimant was able to return to Strick on March 13, 1967, and was reassigned to a lesser paying job which did not involve welding.

The instant claim petition was filed on January 28, 1969, alleging an occupational disease -- renal failure -- under Section 108(n) of the ODA, 77 P.S. § 1208(n) (Supp. 1974-1975), which disablement he contended resulted from exposure to paint fumes associated with welding covering a period of five or more years. After a hearing, a referee awarded benefits against the Commonwealth by determining that under Section 301(g) of the ODA, 77 P.S. § 1401(g), (1) Claimant had suffered renal failure from acute tubular neurosis which "developed from the inhalation of noxious fumes from welding painted metals" over a period of six years; and (2) that because there were four corporate ownership changes of Strick, this hazardous exposure occurred in the course of four separate employments.

The Commonwealth appealed to the Workmen's Compensation Appeal Board. It was then discovered that the notes of testimony of Claimant's medical witness, upon which the referee apparently relied in making this award, had been inadvertently misplaced. The Board accordingly remanded the record for the appointment of an impartial medical expert to determine the cause and nature of Claimant's disability. Upon remand, a second referee reheard the testimony of Claimant's medical witness. Based upon this testimony, which in essence established that Claimant's disability was the product of a massive exposure to noxious paint fumes immediately prior to his hospitalization, the referee found it unnecessary to appoint an impartial ...


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