No. 373 January Term, 1978, Appeal from the Order of the Commonwealth Court of May 11, 1977, to Nos. 1366 and 1368, Affirming Orders of the Workmen's Compensation Appeal Board Denying Compensation at Nos. A-71104 and A-71105
Joseph Lurie, Philadelphia, for appellants.
Paul R. Ober, Reading, for appellee.
Walter Lash and Richard Jablonski appeal from an order of the Commonwealth Court affirming orders of the Workmen's Compensation Appeal Board denying compensation.*fn1 The sole issue presented is whether employees who have been required to handle lead daily during the course of their employment are entitled to an award of compensation for partial disability when they are involuntarily transferred to lower paying lead-free jobs because, due to their lead exposure, they have become lead absorbers.
Lash and Jablonski claim benefits under the Workmen's Compensation Act*fn2 ("Act") for partial disability resulting from the occupational disease of lead poisoning contracted in the course of their employment. For the reasons which follow, we reverse the order of the Commonwealth Court and remand for computation of benefits.*fn3
The facts are not in dispute. Appellants are employees of appellee General Battery Corporation ("General Battery"), a manufacturer of lead lined batteries. For approximately eight years, Lash and Jablonski held positions which required their daily exposure to the hazards of lead handling. Well aware of the risks involved in such exposure, General Battery, much to its credit, periodically tested its employees in lead hazard positions to determine the lead content of their blood.
In 1975, General Battery removed Lash and Jablonski to lower paying non-lead hazard positions "as a preventive matter" on the recommendation of the company physician, Dr. M. Wasserwig, because they had become "lead absorbers," i. e., they had begun to absorb lead into their bloodstreams at an abnormally high rate, making further lead exposure hazardous. Because these positions were less remunerative than their former lead-hazard positions, appellants sought occupational disease benefits.
The Referee concluded as a matter of law that appellants had failed to prove by sufficient competent evidence (1) that they sustained a work related injury or occupational disease within the meaning of the Act and (2) that they were partially disabled due to a work related injury or occupational disease.*fn4 Although it expressly recognized that appellants had become absorbers of lead by reason of their immediate exposure thereto in their work and therefore were no longer permitted by their employer to work in lead exposed areas, thereby suffering a reduction in wages, the Workmen's Compensation Appeal Board affirmed the Referee. The Commonwealth Court agreed that benefits properly had been denied.*fn5
Lash and Jablonski involuntarily were removed by General Battery from the lead-hazard jobs they had performed for approximately eight years because they had become "lead absorbers" and repeatedly showed elevated lead-blood levels. Such action was "preventive" since continued exposure undoubtedly would have caused appellants to become seriously ill. Fortunately, General Battery's concern for the physical well-being of its employees, as evidenced by its ...