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PENN DEL SUPPLY COMPANY AND SENTRY INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (11/27/79)

decided: November 27, 1979.

PENN DEL SUPPLY COMPANY AND SENTRY INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN SHARP, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John A. Sharp v. Penn Del Supply Company, No. 75060.

COUNSEL

Charles S. Katz, Jr., with him Swartz, Campbell & Detweiler, for petitioners.

John H. Spangler, with him Wood, Parke, Barnes & Byrne, for respondents.

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

Author: Macphail

[ 47 Pa. Commw. Page 404]

This is an appeal from an order of the Workmen's Compensation Appeal Board (Board) affirming the award of benefits to John A. Sharp (Claimant). We affirm.

Penn Del Supply Company (Employer) and Sentry Insurance Company (collectively, Petitioners) contend before us that the referee capriciously disregarded competent evidence of the availability of work to the Claimant and failed to make a specific finding with respect to an offer of part-time employment allegedly made by Employer to Claimant.

Claimant worked for Employer for 26 years as a truck driver hauling, among other things, feed grains. In the three years prior to terminating his employment on June 18, 1976, Claimant began to suffer physical discomfort in the form of coughing, wheezing and shortness of breath. His malady was finally diagnosed by his physician as hypersensitive pneumonitis. When

[ 47 Pa. Commw. Page 405]

    he could no longer perform his regular duties, he terminated his employment and applied for benefits under Section 108(n) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by the Act of October 17, 1972, P.L. 930, as amended, 77 P.S. ยง 27.1(n), relating to occupational diseases.

After several hearings the referee concluded that Claimant was totally disabled for any kind of work within his capabilities from an occupationally related disease which occurred because of conditions peculiar to Claimant's employment and, as such, was not common to the general population. Employer does not contest the referee's conclusion that Claimant is suffering an occupationally related disease but does contend that Claimant's disability is partial rather than total.

At the hearings before the referee, Claimant, his physician and a psychologist who examined Claimant testified for Claimant. Employer's president and a vocational and rehabilitation consultant testified for Petitioners. Claimant's physician testified that Claimant would always have difficulty with the two feed grains that caused his problem and that even "minute" continued exposure to them would make Claimant a "pulmonary cripple." However, that witness also testified that as long as Claimant was not exposed to those specific feed grain dusts, he would have no problems and there would be no reason why Claimant could not perform work where there was no such exposure. Claimant testified that after June 18, 1976, he attempted to find other employment but discovered that he also had breathing problems around floor polish ...


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