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HAROLD RICHARD DUNN v. COMMONWEALTH PENNSYLVANIA AND MERCK & COMPANY (03/05/79)

decided: March 5, 1979.

HAROLD RICHARD DUNN
v.
COMMONWEALTH OF PENNSYLVANIA AND MERCK & COMPANY, INC. COMMONWEALTH OF PENNSYLVANIA, APPELLANT. HAROLD RICHARD DUNN V. COMMONWEALTH OF PENNSYLVANIA AND MERCK & COMPANY, INC. MERCK & COMPANY, INC., APPELLANT



Appeals from the Order of the Court of Common Pleas of Northumberland County in case of Harold Richard Dunn v. Merck & Company, Inc. and Commonwealth of Pennsylvania, Nos. 77-410 and CV 77-411.

COUNSEL

Sandra S. Christianson, Assistant Attorney General, for appellant, Commonwealth.

Peter J. Fagan, with him Feldmann and Ciotola, for appellant, Merck & Company, Inc.

George J. Nagle, for appellee.

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

Author: Rogers

[ 41 Pa. Commw. Page 70]

This matter, arising under The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq., was the subject of Dunn v. Merck & Company, Inc., 463 Pa. 441, 345 A.2d 601 (1975), to which reference may be had for a history of the litigation down to the date of that decision. The Supreme Court in the decision just cited vacated this Court's order affirming an order of the Workmen's Compensation Appeal Board dismissing Harold R. Dunn's claim for compensation and remanded the record to the Board "so that it may decide whether Dunn had proved the existence of pulmonary emphysema and whether such pulmonary emphysema was caused by his employment with Merck. In the event the Board determines that Dunn had sufficiently demonstrated the existence of pulmonary emphysema and that his employment was the cause thereof, we

[ 41 Pa. Commw. Page 71]

    then direct the Board to conduct a new hearing at which Dunn may endeavor to prove his pulmonary emphysema is peculiar to his occupation by its causes and the characteristics of its manifestation'." 463 Pa. at 447-48, 345 A.2d at 604.*fn1

The Workmen's Compensation Appeal Board duly reviewed the record and decided that the claimant had proved the existence of pulmonary emphysema and that such pulmonary emphysema was caused by his employment with Merck & Company, Inc. The Board then, still in compliance with the Supreme Court's order, referred the matter to a referee for hearings on the subject of whether the pulmonary emphysema was peculiar to the claimant's occupation by its causes and the characteristics of its manifestation. Additional medical evidence was introduced by the claimant at the referee's hearing. The referee found that the claimant's pulmonary emphysema was not peculiar to his occupation and dismissed the claim petition. The claimant appealed the referee's decision to the Workmen's Compensation Appeal Board which vacated the referee's finding just mentioned, substituted its finding that the claimant's pulmonary emphysema was peculiar to his occupation with Merck & Company, Inc. and awarded compensation for total disability. Merck & Company, Inc. and the Commonwealth of Pennsylvania, which was required to share in the cost of award pursuant to Section 308(a) of The Pennsylvania Occupational Disease Act, 77 P.S. § 1408(a), have appealed.

[ 41 Pa. Commw. Page 72]

The Workmen's Compensation Appeal Board remains the ultimate fact finder with respect to claims under The Pennsylvania Occupational Disease Act, under Section 423 of that Act, 77 P.S. § 1523. Dunn v. Merck & Company, Inc., supra.

Merck & Company, Inc. contests the Appeal Board's finding that the claimant suffered from pulmonary emphysema and that the condition was caused by the claimant's employment and its finding that the claimant had established that his pulmonary emphysema was peculiar to his occupation by its causes and the characteristics of ...


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