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INDUSTRIAL SERVICES CONTRACTING v. JOHN R. WILSON AND WORKMEN'S COMPENSATION APPEAL BOARD (01/05/77)

decided: January 5, 1977.

INDUSTRIAL SERVICES CONTRACTING, INC. AND LIBERTY MUTUAL INSURANCE COMPANY, INSURANCE CARRIER, APPELLANTS
v.
JOHN R. WILSON AND WORKMEN'S COMPENSATION APPEAL BOARD, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John R. Wilson v. Industrial Services Contracting, Inc. and Commonwealth of Pennsylvania, No. A-70707.

COUNSEL

Thomas J. Ferris, for appellants.

C. Jerome Moschetta, with him John A. Moschetta, and James N. Diefenderfer, for appellees.

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

Author: Mencer

[ 28 Pa. Commw. Page 84]

John R. Wilson (claimant) was awarded benefits for an occupational disease under Section 108(n) of The Pennsylvania Workmen's Compensation Act*fn1 (Compensation Act). The referee awarded compensation against the employer, Industrial Services Contracting, Inc. (ISC), alone. ISC's appeal to the Workmen's Compensation Appeal Board (Board) was dismissed, and ISC appealed to this Court.

Claimant spent the vast majority of his 38 years of gainful employment working as an arc welder, although in the past he had taken jobs as a coal miner when he could not find welding employment. Since 1954 he had worked continuously as a welder, his last

[ 28 Pa. Commw. Page 85]

    employer being ISC. During his employment in the two occupations of welding and mining, claimant was exposed to the fumes and dusts peculiar to arc welding and to mining. In October of 1973, while employed by ISC in a position he had held since 1969, claimant was forced to leave his job and seek medical attention for his respiratory condition. He returned to work in January of 1974 but left after a week. In October of 1974, claimant was advised that he suffered from pneumoconiosis, more particularly anthraco-silicosis and arc welder's pneumoconiosis, which resulted from his total and cumulative exposure to coal dust as a miner and his total and cumulative exposure to other noxious dusts as an arc welder. Claimant was also informed that he was totally and permanently disabled. ISC was notified by letter of October 31, 1974 of a disability resulting from exposure to the hazard of arc welder's pneumoconiosis. On November 13, 1974, claimant filed a petition claiming benefits for an occupational disease. The claim, filed on an old form which was customarily used for claims under The Pennsylvania Occupational Disease Act*fn2 (Disease Act), advised of a total disability resulting from silicosis and anthraco-silicosis which had commenced on October 21, 1974.

Several hearings were held before a referee. Near the outset of the proceedings, claimant's counsel moved to amend his petition so as to claim benefits under Section 108(q).*fn3 The referee announced that although the petition had been filed on the old form for silicosis and anthraco-silicosis, it would be treated as though filed under the Compensation Act in reference to Section 108(k) and possibly 108(n). Claimant's

[ 28 Pa. Commw. Page 86]

    counsel did not object, but ISC opposed the amendment. ISC subsequently objected to a series of questions propounded by the referee which sought to elicit from the claimant himself an indication as to under which statute he preferred to press his claim. The claimant indicated his preference for the Compensation Act.

At the request of ISC, the referee appointed an impartial medical witness, Dr. C. Charles Iannuzzi, who, in a report admitted without objection, opined that the claimant was totally and permanently disabled by anthraco-silicosis and arc welder's pneumoconiosis as a result of his total and cumulative exposure to dust in the mines as well as the extents of exposure while working as a welder. Before the referee, the medical witness explained that it is impossible to separate the two forms of pneumoconiosis in the lungs. The distinction is made on the basis of an occupational history indicating the types of dust to which an individual has been subjected. Dr. Iannuzzi indicated that he therefore attributed the claimant's condition to the effects of his employment in two separate occupations: his early employment as a miner and his most recent and more prolonged ...


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