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POLANSKY BAKERY v. COMMONWEALTH PENNSYLVANIA (12/12/78)

decided: December 12, 1978.

POLANSKY BAKERY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JOSEPH WISNIEWSKI, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph Wisniewski v. Polansky Bakery, No. A-72605.

COUNSEL

John R. Lenahan, Jr., with him Lenahan, Dempsey & Murphy, for petitioner.

Charles P. Dattola, with him Laster, Strohl, Kane & Mattes, and James N. Diefenderfer, for respondents.

Judges Blatt, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 39 Pa. Commw. Page 190]

Polansky Bakery (Employer) appeals from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's award to Joseph Wisniewski (Claimant) under the provisions of Section 108(n) of the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, added by Section 1, Act of October 17, 1972, P.L. 930, as amended, 77 P.S. ยง 27.1. We affirm.

[ 39 Pa. Commw. Page 191]

Claimant had worked in the baking industry for approximately fifty (50) years and for most of that period was exposed to flour dust. His last day of employment was March 8, 1974. Claimant was awarded compensation by the referee for total disability caused by chronic bronchitis with severe emphysema. Both the Claimant and the Employer presented medical testimony before the referee. When the Employer appealed the referee's decision to the Board, the referee's order was vacated and the claim was remanded to the referee for the appointment of an impartial physician "with sufficient expertise to determine whether claimant's chronic bronchitis with emphysema was peculiar to claimant's occupation as a baker."*fn1 Upon the appointment of such a physician, and after hearing his testimony, the referee reinstated his previous order. That order was affirmed by the Board. This appeal followed.

The Employer contends that the Board erred when it remanded the case to the referee for impartial medical testimony rather than reversing the referee and dismissing the claim because there was insufficient evidence to sustain the referee's findings. This Court has held that the authority of the Board to order impartial testimony is discretionary. Workmen's Compensation Appeal Board v. Delgado, 22 Pa. Commonwealth Ct. 138, 348 A.2d 447 (1975). In the absence of a manifest abuse of discretion, the exercise thereof should not be disturbed. In the case now before us the Board reviewed the conflicting medical testimony presented before the referee. It did not confine its remand order to a "third opinion," but directed that the impartial physician should be someone of "sufficient expertise" to present testimony which

[ 39 Pa. Commw. Page 192]

    would satisfy the Board with respect to the specific question which was troubling it. We have no doubt that the Board's remand order was a proper exercise of the discretion vested in it by the Legislature.

The Employer's second argument is that neither the testimony of the Claimant's physician, nor of the physician appointed by the referee, established that the Claimant suffered a compensable occupational disease under Section 108(n) of the Act. All three physicians agreed that the Claimant was totally disabled by pulmonary insufficiency. The Claimant's physician and the impartial expert diagnosed the Claimant's disease as chronic bronchitis with emphysema. The Employer's diagnosis was allergic bronchial asthma with secondary emphysema. The issue to be resolved is whether the Claimant's disability resulted from an occupational disease.

In order to receive benefits under Section 108(n), the Claimant must establish by competent evidence that the disease from which he suffers is an occupational disease and that he was exposed to the disease during the course of his employment. Fruehauf Corp. v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 341, 376 A.2d 277 (1977). Under the statutory language of Section 108(n), a disease qualifies as an occupational disease only when it is causally related to the industry or occupation in which the Claimant is engaged and when the incidents of that disease in that occupation or industry is substantially greater than in the general population. The Employer argues that there must be strict compliance with the statutory language. However, this Court held in another case construing the provisions ...


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