Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Harold W. James, Plaintiff, v. Spaulding Bakeries, Inc., Defendant, and Commonwealth of Pennsylvania, Occupational Disease Fund, Additional Defendant, No. 926 of 1974.
David A. Ody, Assistant Attorney General, with him Samuel C. Vary, Assistant Attorney General, for appellant.
Martin D. Cohn, with him Correale F. Stevens, and Laputka, Bayless, Ecker & Cohn, P.C., for appellee, James.
James P. Harris, Jr., with him Harris, Johnston & Maguire, for appellee, Spaulding Bakeries.
Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.
[ 19 Pa. Commw. Page 360]
This is an appeal by the Commonwealth of Pennsylvania, Bureau of Occupational Injury and Disease Compensation, (Commonwealth) from an order of the Court of Common Pleas of Luzerne County affirming a decision of the Workmen's Compensation Appeal Board granting compensation for partial disability to Harold W. James (James).
[ 19 Pa. Commw. Page 361]
On July 1, 1971, James filed a claim petition under The Pennsylvania Occupational Disease Act (Act)*fn1 alleging that he had become totally disabled by "baker's asthma" as a result of his employment by Spaulding Bakeries, Inc., (Spaulding) in a hazardous occupation and, therefore, qualified for compensation under the provisions of Section 108(n) of the Act, added by the Act of February 28, 1956, P.L. (1955) 1095, § 1, 77 P.S. § 1208(n) (Supp. 1974-75). On November 24, 1972, James filed an amended claim petition adding the Commonwealth as a defendant under Section 301(g) of the Act, 77 P.S. 1401(g) (Supp. 1974-75).
Three hearings were then held on the claim petitions, after which a referee dismissed the first petition as a duplication and awarded James compensation for total disability on the amended petition. Spaulding and the Commonwealth both appealed this award to the Board, which subsequently amended the findings of fact, conclusions of law, and award of the referee to provide for compensation for partial disability only. The Commonwealth then appealed to the Court of Common Pleas of Luzerne County. The Court affirmed the decision of the Board, and the Commonwealth then brought the present appeal.
The only argument advanced by the Commonwealth is that the referee, the Board, and the lower court all erred in awarding compensation because James failed to prove the elements entitling him to receive compensation for an occupational disease under Section 108(n). This section reads in pertinent part:
"The term 'occupational disease,' as used in this act, shall mean only the following diseases:
"(n) All other occupational diseases (1) to which the claimant is exposed by ...