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COLT INDUSTRIES v. COMMONWEALTH PENNSYLVANIA (01/23/80)

decided: January 23, 1980.

COLT INDUSTRIES, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND EDWIN H. ORR, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Edwin Howard Orr, Claimant v. Colt Industries, Defendant and Commonwealth of Pennsylvania, Co-Defendant, No. A-75020.

COUNSEL

Joseph A. Fricker, Jr., for petitioner.

William R. Caroselli, with him Edward H. Beachler, III, for respondent.

Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig. This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Author: Craig

[ 49 Pa. Commw. Page 27]

Colt Industries (employer) appeals from an order of the Workmen's Compensation Appeal Board, which set aside the determination of the referee and remanded the case to him for further testimony. The referee had denied petitioner's claim for compensation, concluding that claimant had not sustained injuries or an occupational disease within the provisions of Section 301(c)(2) of The Pennsylvania Workmen's Compensation Act,*fn1 nor had claimant been exposed to the hazard of an occupational disease.

On appeal, the board, determining that the referee's findings were based on substantial competent evidence, remanded the case on the ground that the referee had not completed the inquiry to which claimant was due. The board based its order on Plasteel Production Corp. v. Workmen's Compensation Appeal Board, 32 Pa. Commonwealth Ct. 405, 408, 379 A.2d 908, 910 (1977), where this court held that an "occupational disease type of harm," i.e., an aggravation of a disease by an occupational harm, although not rising to the level of an independently compensable disease, is an "injury" for purposes of Section 301(s).

The employe bases a motion to quash this appeal on the ground that the board's order is an interlocutory matter.

Employer alleges that the board has incorrectly remanded the case because the referee's findings were complete with respect to the issues of causation and aggravation of an occupational disease; evidence on both issues was presented at the hearing.

[ 49 Pa. Commw. Page 28]

The referee's pertinent findings were, that:

8. [D]uring the period from 1952 to November 4, 1975, inclusive, when the claimant was employed as a janitor and occasional laborer, he was not exposed to the hazard of an occupational disease.

13. Your Referee believes and accordingly finds that the claimant is disabled from performing his former occupation . . . due to pneumoconiosis; namely, silicosis and that said disease resulted from his total and cumulative exposure to a coal and silica dust hazard during his employment ...


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