Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Sojourner Guess v. Workmen's Compensation Appeal Board and Link Belt, F.M.C. Corp., No. 5136 March Term, 1977.
Marc S. Jacobs, Galfand, Berger, Senesky, Lurie & March, for appellant.
Robert C. Geller, Jr., Deputy Chief Counsel, for Appellee, Commonwealth of Pennsylvania.
Lawrence L. Robinson, with him Joseph R. Thompson Law Offices, for appellee, Link Belt, F.M.C. Corporation.
Judges Rogers, Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 77 Pa. Commw. Page 320]
Sojourner Guess (Claimant) appeals from a Philadelphia County Common Pleas Court order which affirmed the Workmen's Compensation Appeal Board's (Board) decision sustaining the referee's dismissal of Claimant's claim petition for compensation for silicosis filed under The Pennsylvania Occupational Disease Act (Act).*fn1
Claimant was employed by Link Belt/FMC, Inc. (Employer), as a sand molder for approximately thirty years. During the course of this employment Claimant was exposed daily to sand and silicon dioxide dust
[ 77 Pa. Commw. Page 321]
from which he developed silicosis.*fn2 Upon being permanently separated from his Employer in September 1972, Claimant was briefly hospitalized for respiratory problems.
On February 2, 1973, Claimant filed a claim petition for compensation for silicosis under the Act.*fn3 Upon Claimant's failure to prove that he was totally disabled from silicosis as required by Section 301(e) of the Act, 77 P.S. § 1401(e),*fn4 his claim was dismissed by the referee. Refusing to adjudicate the constitutionality of Section 301(e), the Board affirmed the referee's determination. The common pleas court, expressly rejecting the constitutional challenges to Section 301(e), upheld the Board's decision. This appeal followed.
Acknowledging that he is partially, and not totally, disabled from silicosis, Claimant ...