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COLT INDUSTRIES v. COMMONWEALTH PENNSYLVANIA (03/12/81)

decided: March 12, 1981.

COLT INDUSTRIES, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CALVIN MONTGOMERY, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Calvin Montgomery v. Colt Industries, No. A-77046.

COUNSEL

Joseph A. Fricker, Jr., for petitioner.

Benjamin L. Costello, Yablonski, King, Costello & Leckie, for respondent, Calvin Montgomery.

Judges Wilkinson, Jr., MacPhail and William, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 57 Pa. Commw. Page 465]

In this appeal Colt Industries (Colt) seeks reversal of an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of benefits to claimant Calvin Montgomery. The award was made pursuant to the occupational disease provisions of The Pennsylvania Workmen's Compensation Act.*fn1

Claimant Montgomery was employed for about thirty years as a boiler operator*fn2 at a steel mill which is owned by Colt. On February 18, 1977, acting on the advice of his physician, the claimant quit his job because of breathing problems. The claimant was subsequently examined by a Dr. Jerry D. Silverman, on July 25, 1977. According to Dr. Silverman's report, dated July 28, 1977, the claimant was totally and permanently disabled from pneumoconiosis, namely anthraco-silicosis, and from chronic asthmatic bronchitis and pulmonary emphysema both diffuse and bullous. Dr. Silverman's report also concluded that the claimant's condition was a result of his total and cumulative exposure to coal dust while working in a steel mill, and that the condition was aggravated by exposure to fumes arising from the combustion of oil in the boilers with which claimant worked.

[ 57 Pa. Commw. Page 466]

The claimant testified before the referee that he learned of Dr. Silverman't report in early August 1977 and that it was the first he knew he was disabled from an occupational disease. On August 10, 1977, the claimant notified the employer of his condition by certified mail. On that last mentioned date the claimant filed a claim petition under Section 108 of the Workmen's Compensation Act,*fn3 asserting that he was totally disabled from pneumoconiosis contracted from exposure to dust while working in the steel mill. The alleged period of exposure was from July 1, 1973, to February 1, 1977; and the alleged date of disability was July 28, 1977.

The claimant testified that there was dust throughout the entire building in which he worked. He stated that the building containing the boilers also housed a coal grinder or pulverizer, and that adjacent to the building was a blast furnace. According to the claimant he was exposed to pulverized coke dust from the grinder, dust from the blast furnace and dust from the slag pits, in the course of his work as a boiler operator. He added that he was also exposed to oil fumes from the boiler and coke gas fumes from the blast furnace.

The claimant's evidence before the referee also included the depositions of Dr. Silverman and a Dr. Thomas W. McCreary. Dr. Silverman repeated his opinion that the claimant was totally and permanently disabled from anthraco-silicosis, emphysema and chronic asthmatic bronchitis, and that these conditions occurred as a result of the claimant's total and cumulative exposure to coal dust while working in a steel mill, with aggravation of the condition resulting from exposure to fumes. Dr. Silverman added that the bronchitis was a complication caused by the anthraco-silicosis. In the opinion of Dr. Silverman the claimant's

[ 57 Pa. Commw. Page 467]

    anthraco-silicosis and bronchitis were occupationally related.

According to the testimony of Dr. McCreary, the claimant suffered from chronic bronchitis that had been aggravated by exposure to coal dust, iron ore dust, fumes, and long-term cigarette smoking. It was Dr. McCreary's opinion that chronic bronchitis and emphysema are occupational hazards of the steel industry. He also stated that the claimant had symptoms that were typical of or compatible with coal workers pneumoconiosis, and that because of the claimant's pulmonary condition he was probably totally and permanently disabled.*fn4

It is clear from the referee's findings that he accepted the claimant's description of his working conditions and the dust exposure. In that regard, the referee conducted a view of the boiler house in the presence of parties and counsel. It is also clear that the referee accepted the testimony of the claimant's medical witnesses: The referee found that the claimant was totally and permanently disabled due to anthraco-silicosis and chronic asthmatic bronchitis with complications of emphysema, all of which resulted from, or ...


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