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PUREX v. WORKMEN'S COMPENSATION APPEAL BOARD (HARVEY ODEN) (12/28/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 28, 1982.

PUREX, INCORPORATED, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (HARVEY ODEN), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Harvey Oden v. Purex, Incorporated, No. A-76708.

COUNSEL

Charles W. Craven, Marshall, Dennehey, Warner, Coleman & Goggin, for petitioner.

James J. DeMarco, for respondent, Harvey Oden.

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

Author: Crumlish

[ 70 Pa. Commw. Page 549]

The Workmen's Compensation Appeal Board (Board), by order, affirmed a referee's award of total disability benefits to Harvey Oden. Purex, Incorporated (Purex), appeals. We affirm.

Purex, which manufactures various soaps and soap products, employed Oden from September 12, 1966, to May 31, 1975, as a laborer, mixer and utility man. On September 30, 1975, Oden filed for benefits under Section 108(n) of The Pennsylvania Occupational Disease Act*fn1 alleging that he suffered from chronic obstructive pulmonary disease. On July 25, 1977, Oden amended his petition in order to bring his claim under Section 108(n) of The Pennsylvania Workmen's Compensation Act*fn2 (Compensation Act).

[ 70 Pa. Commw. Page 550]

The referee, in awarding benefits, made the following pertinent factual findings and legal conclusions:

FINDINGS OF FACT

2. The Claimant was employed by the Defendant as a general laborer, mixer, and did other duties with access to all areas of the plant concerned with the manufacture of soaps, powders, bleaches and other detergents.

3. The Claimant was employed in the above position from September 12, 1966 to May 31, 1975.

4. As a result of being employed in the position mentioned above, the Claimant was exposed to silica, bacillus subtilis, and other ingredients used in the manufacture of the soap products and other products mentioned above.

5. Solely as a result of the exposure mentioned above, the Claimant contracted chronic obstructive restrictive pulmonary disease, from which he became totally disabled on June 2, 1975.

6. The incidents [sic] of Claimant's disease is substantially greater in the Defendant's industry and other industries which use bacillus subtilis than in the general population. The Claimant's disease is therefore causally related to his occupation with the Defendant.

[ 70 Pa. Commw. Page 551]

CONCLUSIONS OF LAW

2. The Claimant became totally disabled on May 31, 1975 because of chronic obstructive restrictive pulmonary lung disease, which was caused by his exposure to silica and other ingredients including but not limited to bacillus subtilis.*fn3

The Board affirmed. Purex appeals, claiming that Oden failed to sustain his burden of proof under Section 108(n) of the Compensation Act and that there was not substantial evidence indicating that Oden was exposed to an occupational disease hazard, or that his exposure, if any, occurred after June 30, 1973.

In order to recover disability benefits, an employee must show by substantial competent evidence that he suffers from an occupational disease and that the disease arose out of or in the course of employment.*fn4 Crucible Steel (Colt Industries) v. Workmen's Compensation Appeal Board, 55 Pa. Commonwealth Ct. 271, 274, 425 A.2d 1108, 1110 (1980). To qualify a sickness as an occupational disease under Section 108(n) (generally known as the catchall or omnibus provision), the claimant must meet three requirements, namely,

[ 70 Pa. Commw. Page 552]

    that his condition is one (1) to which the claimant is exposed by reason of his employment and (2) which [is] causally related to the industry or occupation, and (3) the incidence of which is substantially greater in that industry or occupation than in the general population.

Roofner v. Workmen's Compensation Appeal Board, 38 Pa. Commonwealth Ct. 218, 222, 392 A.2d 346, 348 (1978). Additionally, Section 301(c) of the Compensation Act*fn5 requires that the employee be exposed to the hazard of an occupational disease subsequent to June 30, 1973. See also Houze Glass Corp. v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 537, 538, 402 A.2d 1124 (1979).

To satisfy the first requirement, an employee "may reasonably identify or describe the causative factors of the disease, demonstrate that the factors are significantly present in his employment, and show that he was exposed to this significant presence." Fruehauf Corp. v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 341, 347, 376 A.2d 277, 280 (1977). (Footnotes omitted.) Oden testified that, as a tower utility man,*fn6 he was exposed to significant amounts of powder or "dust"*fn7 while cleaning the area or performing other jobs around the tower. Oden's testimony, taken as a whole, "was most certainly descriptive, sufficient and competent to establish the existence

[ 70 Pa. Commw. Page 553]

    of [an occupational disease] hazard. . . ."*fn8 Jones & Laughlin Steel Corp. v. Golnitz, 28 Pa. Commonwealth Ct. 25, 28, 367 A.2d 323, 325 (1976). See also Bethlehem Mines Corp. v. Workmen's Compensation Appeal Board, 66 Pa. Commonwealth Ct. 404, 444 A.2d 1313 (1982).*fn9

To complete the proof of an occupational disease, the employee must establish that "the disease is causally related to the industry or occupation and that the incidence of the disease is substantially greater in the industry or occupation than in the general population." Fruehauf Corp. at 348, 376 A.2d at 280. Oden demonstrated, through expert testimony, that chronic obstructive pulmonary disease is causally related to the soap manufacturing industry and that the incidence of this disease was substantially greater in the industry than in the general population. Thus, Oden has clearly proved the existence of an occupational disease.

Having established that he suffers from an occupational disease, the employee must then prove "that the disease arose out of or in the course of his employment." Fruehauf Corp. at 348, 376 A.2d at 281. An "injury arising in the course of employment . . .

[ 70 Pa. Commw. Page 554]

    shall include all injuries caused by the condition of the [employer's] premises. . . ."*fn10 Thus, an employee may satisfy this requirement by proving that "the particular plant or place of business where he was employed constituted an occupational disease hazard." Fruehauf Corp. at 349, 376 A.2d at 281.*fn11 We conclude that Oden proffered evidence from which the referee could reasonably infer that the occupational disease was a hazard at the particular place where he worked.

The final issue for our determination is whether or not we should remand for a specific finding that Oden was exposed to the occupational disease hazard after June 30, 1973. A review of the referee's findings and the record reveals the following: that Oden was employed from September 12, 1966 to May 31, 1975; that his duties, up until the time that he left his employment, involved the production of soap and soap products; that he was exposed to certain irritants during the term of his employment; and that, as a result of this exposure, Oden became totally disabled. Here, the disability resulted from a cumulative exposure to the soap irritants, and the testimony demonstrates that Oden was exposed to the hazard after June 30, 1973. Although the findings could have been drafted with more specificity, we shall not remand merely because the referee's findings do not explicitly state what indeed can be inferred from the record*fn12 and

[ 70 Pa. Commw. Page 555]

    what is a natural consequence of the referee's findings taken as a whole.

Affirmed.

Order

The Workmen's Compensation Appeal Board order, No. A-76708, dated January 29, 1981, is hereby affirmed.

Disposition

Affirmed.


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