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WAGNER ELECTRIC CORPORATION v. COMMONWEALTH PENNSYLVANIA (06/10/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 10, 1981.

WAGNER ELECTRIC CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND MARY R. ERDMAN, RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Mary R. Erdman v. Wagner Electric Corporation, No. A-77860.

COUNSEL

Bart E. Ecker, Laputka, Bayless, Ecker & Cohen, P.C., for petitioner.

Thomas L. Kennedy, Kennedy, Carlyon & Conahan, for respondent, Mary R. Erdman.

President Judge Crumlish and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 59 Pa. Commw. Page 618]

The petitioner*fn1 seeks review of an order of the Board*fn2 granting benefits to the claimant*fn3 for total disability due to an occupational disease under Section 108(n) of The Pennsylvania Workmen's Compensation Act (Compensation Act).*fn4

The claimant filed a petition alleging that she was totally disabled due to her exposure to noxious gases in the course of her employment which aggravated her pre-existing asthmatic condition. After a hearing, a referee assessed the conflicting evidence and determined that the claimant had been exposed to toxic fumes in the course of her employment, that such exposure aggravated her bronchial and asthmatic conditions causing total disability and that the claimant's condition is substantially more prevalent in her occupation than in the general public. He therefore granted benefits on the grounds that the claimant was totally disabled due to an occupational disease, and the Board affirmed. This appeal followed.

The petitioner contends that the claimant did not meet her burden of proof because, in order to establish that she had an occupational disease, she had not only to meet the three requirements of Section 108(n) of the Compensation Act,*fn5 but she also had to demonstrate that her disease was peculiar to her

[ 59 Pa. Commw. Page 619]

    occupation by its causes and the characteristics of its manifestations. See Utter v. Asten-Hill Manufacturing Co., 453 Pa. 401, 309 A.2d 583 (1973).

We must point out that in Utter the Supreme Court was concerned with a claim under Section 108(n) of the Occupational Disease Act, Act of June 21, 1939, P.L. 566, added by Section 1 of the Act of February 28, 1956, P.L. (1955) 1095, as amended, 77 P.S. ยง 1208(n). The petitioner claims, we note, that our decision in Polansky Bakery v. Workmen's Compensation Appeal Board, 39 Pa. Commonwealth Ct. 189, 394 A.2d 1324 (1978), declared that the Utter requirement (i.e., that a claimant prove that the characteristics of a disease are peculiarly related to his occupation) is equally applicable to claims under Section 108(n) of the Compensation Act. We cannot agree, however, with this interpretation.

A number of cases decided by this Court establish that a claimant need only meet the three statutory requirements in order to recover disability benefits for an occupational disease under the Compensation Act. See e.g., Colt Industries v. Borovich, 44 Pa. Commonwealth Ct. 493, 403 A.2d 1372 (1979) rev'd on other grounds, Pa. , 424 A.2d 1237 (1981); Plasteel Products Corp. v. Workmen's Compensation Appeal Board, 32 Pa. Commonwealth Ct. 405, 379 A.2d 908 (1977).

Moreover, we do not believe that Polansky Bakery v. Workmen's Compensation Appeal Board, supra, imposes an additional burden of proof upon the claimant beyond those delineated in the statute. That opinion specifically acknowledged the three statutory criteria of Section 108(n) of the Compensation Act to be the appropriate standards for determining disability due to an occupational disease, and any reference to the Utter standard was merely dicta and was not necessary to the holding in Polansky Bakery.

[ 59 Pa. Commw. Page 620]

We, therefore, cannot read that case as requiring a claimant under Section 108(n) of the Compensation Act to prove that her disease is peculiar to her occupation by its causes and the characteristics of its manifestations.

We will affirm the Board's order.

Order

And Now, this 10th day of June, 1981, the order of the Workmen's Compensation Appeal Board in the above-captioned case is affirmed and

It Is Further Ordered that judgment is entered against the Wagner Electric Corporation and/or its insurance carrier in favor of the claimant, Mary R. Erdman, and her attorney in the amounts specified in the referee's decision.

Disposition

Affirmed.


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