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FRUEHAUF CORPORATION v. WORKMEN'S COMPENSATION APPEAL BOARD AND HOWARD W. CORNELL (07/28/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 28, 1977.

FRUEHAUF CORPORATION, INDEPENDENT METAL DIVISION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND HOWARD W. CORNELL, RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Howard W. Cornell v. Fruehauf Corporation, Independent Metal Division, and Commonwealth of Pennsylvania, No. A-71052.

COUNSEL

James R. Miller, with him Dickie, McCamey & Chilcote, for appellant.

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

Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 31 Pa. Commw. Page 342]

Fruehauf Corporation (Fruehauf) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of benefits to Howard W. Cornell. Benefits were awarded for permanent and total disability resulting from an occupational disease as defined in Section 108(n) of The Pennsylvania Workmen's Compensation Act*fn1 (Compensation Act).

Cornell, who prior to 1961 had been employed as a coal miner for many years, worked for Fruehauf from July 1961 to July 1974 as an arc welder. In the performance of his duties as a welder, Cornell utilized

[ 31 Pa. Commw. Page 343]

    electrodes of different sizes containing various filler wires which would melt when an arc was struck between the electrode and the metal to be welded. This process generated dust, smoke, and fumes, the exact composition of which was unknown to Cornell. The fumes, which were abundantly and regularly present, would come up under the protective hood worn by Cornell whenever he welded.

Cornell applied for benefits, and hearings were held before a referee. At those hearings, evidence from two pulmonary disease specialists indicated that Cornell was permanently and totally disabled by arc welders' pneumoconiosis and anthracosilicosis 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. One specialist, Dr. J. D. Silverman, noted the difficulty in separating the two forms of pneumoconiosis in the lungs. The distinction, he explained, is made on the basis of an occupational history indicating the types of dust to which an individual has been subjected. Dr. Silverman also testified that arc welders' pneumoconiosis is peculiar to the occupation of arc welding, that it is not a disease the general population can contract, and that exposure to arc welding constitutes an occupational pulmonary hazard.

In his decision, the referee found the following essential facts:

6. During all of his employment as a welder with the defendant the claimant was exposed to noxious dusts, gasses, and fumes emanating from the welding operation and peculiar to said occupation.

8. On January 10, 1975 the claimant became permanently and totally disabled due to

[ 31 Pa. Commw. Page 344]

    pneumoconiosis; namely, anthracosilicosis and arc-welder's pneumoconiosis.

9. The aforementioned permanent and total disability is a direct result of his exposure to the hazard of noxious dusts, gasses, and fumes during all of his employment as a coal miner and welder including the period of exposure from July 1, 1973 through July 26, 1974.

On the basis of his findings, the referee awarded Cornell disability benefits under the Compensation Act for an occupational disease as defined in Section 108(n). When the Board affirmed the award, Fruehauf appealed to this Court.

Fruehauf generally contends that the above findings are not supported by competent evidence. It further asserts that, because the award under Section 108(n) was based on those findings, it is erroneous. Essentially, Fruehauf seeks to have us declare that there is not substantial evidence of record to support findings that Cornell was exposed to a hazard, that such a hazard was related to the disease of arc welders' pneumoconiosis, or that the disease arose out of and in the course of Cornell's employment with Fruehauf.

In order to properly deal with Fruehauf's complex assertions, we must examine the statutory requirements of the Compensation Act. To receive benefits for an occupational disease under this statute, a claimant must show, inter alia, that he suffers from a disease as defined in Section 108 and that the disease arose out of and in the course of his employment. See Section 301(c) of the Compensation Act, 77 P.S. § 411.

In the majority of cases, it is not difficult to determine whether a particular condition is an occupational disease within the meaning of Section 108. With the exception of subsection (n), all the diseases there enumerated are identified and their causative

[ 31 Pa. Commw. Page 345]

    factors indicated.*fn2 The pathologic effects of these diseases are well known, and the required occupational exposure is often easily demonstrated.

However, the foregoing does not apply to subsection (n), generally known as the catchall or omnibus provision. The intent of this subsection is to bring into the fold of coverage each new occupational disease as medical science verifies it and establishes it as such, without the need for special legislative recognition by addition to the scheduled diseases or otherwise. 2 A. Barbieri, Pa. Work. Comp. § 7.05 (1975). It is therefore not surprising that the requirements of this subsection differ in form from those of the other subsections.

The subsection contains three requirements.*fn3 First,

[ 31 Pa. Commw. Page 346]

    it requires that a claimant be exposed to a disease by reason of his employment. Stated differently, a claimant must show that the occupational disease is a hazard*fn4 of his employment and that he was exposed to

[ 31 Pa. Commw. Page 347]

    it.*fn5 To satisfy this requirement, a claimant may reasonably identify or describe the causative factors of the disease,*fn6 demonstrate that the factors are significantly present in his employment,*fn7 and show that he was exposed to this significant presence.

[ 31 Pa. Commw. Page 348]

The claimant must also demonstrate that the disease is causally related to the industry or occupation and that the incidence of the disease is substantially greater in the industry or occupation than in the general population. These requirements serve to establish the occupational impact of the disease and to distinguish those diseases which are not occupational in nature. Accordingly, evidence of the conditions in the industry or occupation is necessary; it is not enough to demonstrate that in a particular factory a disease constitutes a hazard.*fn8

Having established an occupational disease under Section 108(n), a claimant must next prove that the disease arose out of and in the course of his employment.*fn9 An occupational disease which is caused by the conditions of the employer's premises is included among those compensable diseases which arise in the course of employment. See Section 301(c) of the Compensation Act, 77 P.S. § 411.

The course-of-employment requirement may be satisfied in two ways. On the one hand, a claimant may, by specified proof, bring himself within the rebuttable presumption of Section 301(e) of the Compensation Act, 77 P.S. § 413:*fn10

[ 31 Pa. Commw. Page 349]

If it be shown that the employe, at or immediately before the date of disability, was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed that the employe's occupational disease arose out of and in the course of his employment, but this presumption shall not be conclusive.

By the terms of the statute, an employee must demonstrate, inter alia, that a disease is a hazard in his industry or occupation*fn11 before he can get the benefit of this rebuttable presumption.*fn12 On the other hand, if a claimant proves that the particular plant or place of business where he was employed constituted an occupational disease hazard, the claimant has no need for the presumption. Cf. Metz, supra note 4 (construing identical language in Section 301(f) of The Pennsylvania Occupational Disease Act, 77 P.S. § 1401(f)). Thus the course-of-employment requirement may also be satisfied by evidence from which the compensation authorities may properly infer that an occupational disease hazard existed at the particular place where the claimant was employed. Cf. McGarvey, supra note

[ 31 Pa. Commw. Page 3504]

(construing identical language in Section 301(f) of the Disease Act).

Turning now to the case at bar, we will deal with Fruehauf's three assertions. The first assertion concerns an alleged lack of substantial evidence to support a finding that Cornell was exposed to a hazard or that any such hazard was related to the disease of arc welders' pneumoconiosis. Specifically, Fruehauf contends that Cornell neither identified the specific factors to which he was exposed nor demonstrated that those factors were related to the disease. Thus, Fruehauf essentially questions whether the first requirement of Section 108(n) has been met. We hold that it has.

Cornell has shown that arc welders' pneumoconiosis is a hazard of his employment and that he was exposed to it. Dr. Silverman, the pulmonary disease specialist, supplied expert testimony sufficient to establish dust as the causative factor of pneumoconiosis. The particular dust, smoke, and fumes to which Cornell was exposed as an arc welder were generally described by him as arising from the arc-striking process. In lieu of a statutory requirement of greater specificity,*fn13 we cannot say this description was unreasonable or insufficient, especially considering the variety and complexity of the materials involved. Cornell also testified that the fumes were abundantly and regularly present and that they would come up under his hood whenever he welded. Because Cornell has reasonably described the causative factors of arc welders' pneumoconiosis, shown that such factors were significantly present in his employment, and demonstrated that he was exposed to the significant presence, he has satisfied the first requirement of subsection (n).

[ 31 Pa. Commw. Page 351]

Fruehauf also suggests that Cornell failed to establish that the disease arose out of and in the course of his employment with Fruehauf. In this regard, Fruehauf asserts that, because Cornell did not establish that he was employed in an occupation in which arc welders' pneumoconiosis is a hazard, he is not entitled to the benefit of the rebuttable presumption of Section 301(e) of the Compensation Act. We disagree.

We hold that Cornell has, by competent evidence, satisfied the course-of-employment requirement. We have previously concluded that he established the disease as a hazard of his employment. In addition, Cornell demonstrated, through the expert testimony of Dr. Silverman, that the disease is peculiar to arc welders and that it is not a disease the general population can contract. Dr. Silverman's testimony on these points is competent evidence, see Imperial Food Products, supra note 6, and is sufficient to establish that in the occupation of arc welding the disease is a hazard. Because Cornell's proof also indicates that immediately before the date of disability he was employed by Fruehauf as an arc welder, he is entitled to the benefit of the Section 301(e) presumption.

Additionally, Cornell adduced evidence from which the compensation authorities could permissibly infer that an occupational disease was a hazard at the particular place where he was employed. Thus, Cornell did not need the rebuttable presumption to satisfy the course-of-employment requirement. See Section 301(c) of the Compensation Act; cf. McGarvey, supra note 4; Metz, supra note 4.

We have found no merit in any of Fruehauf's contentions. Rather, we conclude that by competent evidence Cornell has satisfied the statutory requirements of the Compensation Act. The award of benefits is therefore affirmed.

[ 31 Pa. Commw. Page 352]

Order

And Now, this 28th day of July, 1977, the appeal of Fruehauf Corporation is hereby dismissed, and the order of the Workmen's Compensation Appeal Board, dated July 22, 1976, is affirmed. Accordingly, it is ordered that judgment be entered in favor of Howard W. Cornell and against Fruehauf Corporation, Independent Metal Division, and Continental Casualty Company, in the amount of $106 per week, beginning January 10, 1975 and continuing until such time as disability changes in nature or extent or ceases and terminates, together with interest at the rate of 10 percent per annum on deferred payments of compensation from the date due to the date paid, all within the terms and limits of The Pennsylvania Workmen's Compensation Act.

In addition, Fruehauf Corporation, Independent Metal Division, and Continental Casualty Company are directed to pay the following reasonable costs of prosecution by reimbursement to claimant's counsel:

Dr. J. D. Silverman

Examination and deposition $285.00

Nawanna M. Templeton

Stenographer for deposition 99.00

Fruehauf Corporation, Independent Metal Division, and Continental Casualty Company are further directed to pay approved attorney's fees of $1,950 directly to claimant's counsel, C. Jerome Moschetta, Esquire, from the deferred compensation due the claimant. All remaining compensation, together with interest, is to be paid directly to Howard W. Cornell.

Disposition

Affirmed.


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