Appeal from the Order of the Court of Common Pleas of Huntingdon County in case of Evelyn R. Querry, Widow of Milton H. Querry, deceased v. Pennsylvania Glass Sand Corporation and Commonwealth of Pennsylvania, No. 110 September Term, 1970.
Alexander J. Pentecost, for appellant.
James S. Routch, with him Patterson, Evey, Routch, Black & Behrens, for appellee, Corporation.
Mary Ellen Krober, Assistant Attorney General, for appellee, Commonwealth.
Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Kramer.
[ 24 Pa. Commw. Page 226]
This is an appeal by Evelyn R. Querry, widow of Milton H. Querry (decedent), from an order of the Court of Common Pleas of Huntingdon County, dated August 6, 1975, which affirmed a Workmen's Compensation Appeal Board decision denying Querry's claim for benefits under the Pennsylvania Occupational Disease Act.*fn1 We conclude that both the Board and lower court erred as a matter of law, and remand to the Board for a proper determination.
The decedent had been employed for many years by the Pennsylvania Glass and Sand Corporation (PGSC), a manufacturer of silica sand.*fn2 The decedent retired due to a lung disability in late 1964 or early 1965, but returned to work as a watchman on November 28, 1965. The decedent's last day of work was March 17, 1968 and his date of death was May 8, 1968.
Querry filed a claim for death benefits under the Pennsylvania Occupational Disease Act on September 9, 1968. The Commonwealth of Pennsylvania was joined as an additional defendant and a hearing was held
[ 24 Pa. Commw. Page 227]
before a referee. Querry testified that when her husband returned home from work he had dust on his clothes. A fellow employe of the decedent testified as follows:
"Q. How frequently would you see him [decedent] during the twenty-seven years you worked there when he did?
A. Him and I worked the same trick, the night turn. Then after he was transferred over on daylight I saw him about every day because I lived neighbors to him.
Q. Did you observe whether or not there was any dust where he worked?
A. There was dust where he worked and where I worked too.
Q. What did the dust come from ?
A. From the grinding and the drying and the mixing of the sand. It come off the beltways and so forth.
Q. The product of your employer was what? What did they make at the plant ?
A. Silica sand for different places.
Q. Was it possible to have worked there and have not had this sand dust get on you?
A. It would get on you, and in you too." (Emphasis added.)
Querry introduced into evidence a medical report by the pathologist who performed an autopsy on the decedent. The report read in pertinent part as follows:
"As I believe is clear from the [autopsy] report, the cause of death in this case in my opinion is active chronic bronchiolitis. I believe this was secondary to the chronic bronchitis and emphysema, both of which can be related to the anthracosilicosis. In the absence of any other known mechanism in this ...