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HAROLD RICHARD DUNN v. MERCK & COMPANY (10/03/75)

SUPREME COURT OF PENNSYLVANIA


decided: October 3, 1975.

HAROLD RICHARD DUNN, APPELLANT,
v.
MERCK & COMPANY, INC., ET AL., APPELLEES

COUNSEL

George J. Nagle, Shamokin, for appellant.

William R. Mosolino, Orwigsburg, for appellee, Commonwealth of Pa. Occupational Disease Fund.

Louis G. Feldmann, Feldmann & Ciotola, Peter J. Fagan, Hazelton, for appellee, Merck & Co., Inc. & Pa. Mfrs. Assn. Ins. Co.

Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Jones, C. J., and Manderino, J., took no part in the consideration or decision of this case. Pomeroy, J., concurs in the result.

Author: Eagen

[ 463 Pa. Page 444]

OPINION OF THE COURT

On July 21, 1967, Harold Richard Dunn filed a claim petition under The Pennsylvania Occupational Disease Act.*fn1 Dunn had been employed by Merck & Company, Inc. [Merck] as a chemical operator from January 21, 1952, until August 23, 1966. In his employment, Dunn handled approximately forty-seven different chemicals in various concentrations and combinations in the preparation of medicines. In his petition, Dunn alleged that, as a result of exposure to and inhalation of these chemicals, he had become totally disabled by pulmonary fibrosis and emphysema and, therefore, qualified for compensation under Act.*fn2 This subsection provides, in pertinent part, that the term occupational disease shall include "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 provisions of Section 108(n) of the general population."*fn3

After three hearings, the Workmen's Compensation Referee on January 28, 1970, entered an award in favor of Dunn. The Referee determined that Dunn, by reason of his exposure to toxic fumes, dusts and solvents while in Merck's employ, had become totally and permanently disabled on August 23, 1966, due to pulmonary fibrosis with superimposed pulmonary emphysema. Merck then appealed to the Workmen's Compensation Board which, without taking further testimony, on May 18,

[ 463 Pa. Page 4451972]

, reversed the award by the Referee and dismissed Dunn's claim. The Board, relying upon Habovick v. Curtiss-Wright Corporation, 207 Pa. Super. 80, 215 A.2d 389 (1965), held that relief could be had in accordance with the provisions of Section 108(n) where pulmonary emphysema is found to be secondary to pulmonary fibrosis. However, after a close analysis of the testimony taken before the Referee, the Board determined that Dunn had failed to prove the existence of pulmonary fibrosis.*fn4 Because the Board assumed that pulmonary emphysema, by itself, would not constitute an occupational disease within the meaning of Section 108(n),*fn5 it failed to discuss whether Dunn had proved the existence of pulmonary emphysema; nor did it discuss whether Dunn's pulmonary emphysema was caused by his employment with Merck. Dunn then filed an appeal in the Court of Common Pleas of Northumberland County and his appeal was dismissed.

[ 463 Pa. Page 446]

An appeal was then taken to the Commonwealth Court. That court recognized the Board had acted without the benefit of our decision in Utter v. Asten-Hill Mfg. Co., 453 Pa. 401, 309 A.2d 583 (1973) (filed September 19, 1973), which set forth the law as to when a disease may properly be considered an occupational disease under the provisions of Section 108(n). Prior to Utter, case law had decreed that diseases which were common to the general population could not be considered as compensable occupational diseases under the provisions of Section 108(n), even if the disease were caused by the claimant's employment. See e. g., Perez v. Blumenthal Brothers Chocolate Company, 428 Pa. 225, 237 A.2d 227 (1968); Scott v. United States Steel Corporation, 203 Pa. Super. 459, 201 A.2d 243 (1964); Porter v. Sterling Supply Corp., 203 Pa. Super. 138, 199 A.2d 525 (1964). However, in Utter, this Court recognized that Section 108(n) was intended to be a "vehicle for compensation in situations . . . where the . . . diseases, though not enumerated elsewhere in the act, are nonetheless generated by an occupational hazard." Id. at 410, 309 A.2d at 588. We there ruled that cancer, although common to the general public, can be an occupational disease as that term is defined by Section 108(n), "if it may be shown by competent evidence that a claimant's cancer is peculiar to the claimant's occupation by its causes and the characteristics of its manifestation." [Emphasis added.] Id. at 410, 309 A.2d at 588.

The Commonwealth Court properly perceived that, although the Utter case involved the disease of cancer, the language used was not intended to be limited in application. Therefore, it ruled that pulmonary emphysema would be an occupational disease within Section 108(n) if the claimant could demonstrate the disease is peculiar to his occupation by its "causes and the characteristics

[ 463 Pa. Page 447]

    of its manifestation".*fn6 However, after independently reviewing the record, the Commonwealth Court found that Dunn had failed to satisfy the test set forth in Utter. We cannot agree with this disposition of the issue.

It is well-settled that the compensation authority is the factfinding body and it is not within the province of a reviewing court to assume the privilege of making findings of fact. Cerny v. Schrader & Seyfried, Inc., 463 Pa. 20, 342 A.2d 384 (1975); Utter v. Asten-Hill Mfg. Co., supra; Dindino v. Weekly Review Publishing Company, Inc., 188 Pa. Super. 606, 149 A.2d 475 (1959). As noted previously, the Board was under the misconception that pulmonary emphysema could not be an occupational disease under Section 108(n). Therefore, the Board deemed it unnecessary to decide whether Dunn had proved the existence of pulmonary emphysema. Nor, by natural consequence, did the Board consider whether Dunn's pulmonary emphysema was demonstrated by him to be peculiar to his occupation by its "causes and the characteristics of its manifestation". The Commonwealth Court's determinations in this regard, based upon a tabula rosa, were patently improper.

Therefore, we vacate the Order of the Commonwealth Court and remand the record to the Workmen's Compensation Board so that it may decide whether Dunn had proved the existence of pulmonary emphysema and whether such pulmonary emphysema was caused by his employment with Merck. In the event the Board determines that Dunn had sufficiently demonstrated the existence of pulmonary emphysema and that his employment was the cause thereof, we then direct the Board to

[ 463 Pa. Page 448]

    conduct a new hearing at which Dunn may endeavor to prove his pulmonary emphysema is peculiar to his occupation by its "causes and the characteristics of its manifestation".*fn7

It is so ordered.


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