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EVELYN R. QUERRY v. PENNSYLVANIA GLASS SAND CORPORATION AND COMMONWEALTH PENNSYLVANIA (04/01/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 1, 1976.

EVELYN R. QUERRY, WIDOW OF MILTON H. QUERRY, DECEASED, APPELLANT
v.
PENNSYLVANIA GLASS SAND CORPORATION AND COMMONWEALTH OF PENNSYLVANIA, APPELLEES

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.

COUNSEL

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.

Author: 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 case, I believe one can say that silicosis was the underlying cause of death."

[ 24 Pa. Commw. Page 228]

Neither the Commonwealth nor PGSC offered any evidence to rebut the evidence offered by Querry. The only evidence offered by PGSC was testimony indicating that the decedent had previously been employed at the same plant by the Pennsylvania Glass Sand Company and the Pittsburgh White Sand Company.

The referee made the following pertinent findings of fact:

"FOURTH: The Defendant and the Commonwealth

     of Pennsylvania had due notice of the

     death of Milton H. Querry due to sili-

     cosis.

FIFTH: Milton H. Querry was employed by Pitts-

     burgh Sand Company for five years; by

Pennsylvania Glass Sand Company for

     four years; and, by the Pennsylvania

Glass Sand Corporation from 1930 to

March 17, 1968; his last date of employ-

     ment. During all these periods of time

     he was exposed to the dust os [sic]

     silicon dioxide.

SIXTH: Milton H. Querry died on May 8, 1968

     as a result of silicosis. This disease

     developed to the point of disablement and

     death over a period in excess of five

     years.

SEVENTH: Milton H. Querry left to survive him, his

     widow Evelyn R. Querry, and the follow-

     ing minor children, all of whom were

     living with him and dependent upon him

     for support at the time of his death:

Gloria Querry, born February 17, 1953;

Kenneth Querry, born June 10, 1954;

Shirley Querry, born December 19, 1955;

     and Edna Querry, born November 6,

1957.

EIGHTH: The expense of burial was in the amount

     of $1,100.00, and has been paid by the

     claimant-widow.

NINTH: It has not been conclusively proved that

     decedent's death was the result of his

     last exposure to a silica hazard while

     employed by the defendant."

[ 24 Pa. Commw. Page 229]

Based upon the findings, the referee concluded Querry was entitled to compensation payable by the Commonwealth.*fn3 The Board, in its decision dated July 30, 1970, vacated the referee's fourth, fifth, sixth and ninth findings of fact and substituted the following:

"4. The decedent was not employed by the Defendant in a hazardous occupation.

5. The decedent was not exposed to the hazard of silicon dioxide while employed by the Defendant.

6. Silicosis is not peculiar to the industry or occupation followed by the decedent."

The Board's decision stated that the statutory presumption in Section 301(f) of the Act*fn4 is not available to Querry unless it is shown that silicosis was a hazard in the decedent's industry and that the decedent was exposed to that hazard. The decision also stated that:

"The burden on the Claimant [Querry] required her to go further and prove that the disease of silicosis is peculiar to the decedent's industry or occupation and not common to the general population. Her proof did not rise to the required degree and compensation

[ 24 Pa. Commw. Page 230]

    must be denied. See METZ vs. QUAKERTOWN STOVE WORKS, 156 Super. 70 (1944)."

The Board did not have the benefit of our Supreme Court's decision in Morrison v. Allied Chemical Corporation, 444 Pa. 170, 283 A.2d 75 (1971), at the time it made its decision, and, as a result, the Board clearly erred as a matter of law regarding the applicable burden of proof.*fn5 Querry only had to prove that the decedent died from a specifically enumerated occupational disease*fn6 contracted in the course of his employment. See Morrison, supra. Querry might also be eligible for benefits if she can show that the decedent died from a disease which is not specifically enumerated in the Act, but which is peculiar to the decedent's occupation by its causes and the characteristics of its manifestation. See Utter v. Asten Hill Mfg. Co., 453 Pa. 401, 309 A.2d 583 (1973).

Since neither the parties to this case, nor the factfinder had the benefit of the new standards set forth by the Supreme Court in Morrison, supra and Utter, supra, this case must be remanded in order that all parties "may

[ 24 Pa. Commw. Page 231]

    be permitted an opportunity to present additional testimony in order to establish their respective positions in accordance with the new standard." Cuevas v. Platers & Coaters, Inc., Pa. , , 346 A.2d 6, 9 (1975). The Supreme Court has quite clearly indicated that it is improper for this Court, in this type of case, to independently review the record, and determine if Querry has met her burden of proof. Cuevas, supra; Williams v. Spaulding Bakeries, Inc., Pa. , 346 A.2d 3 (1975); Dunn v. Merck & Company, Inc., Pa. , 345 A.2d 601 (1975).

We therefore

Order

And Now, this 1st day of April, 1976, the order of the Court of Common Pleas of Huntingdon County, dated August 6, 1975, is hereby vacated, and this case is remanded to the Workmen's Compensation Board for proceedings consistent with the above opinion.

Disposition

Order vacated. Case remanded to the Workmen's Compensation Appeal Board.


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