Appeal from the Order of the Workmen's Compensation Appeal Board in case of Frank Pawlosky v. Latrobe Brewing Company, No. A-79849.
Vincent J. Quatrini, Jr., with him Morrison F. Lewis, Jr., for petitioner.
N. R. Zuschlag, Fried, Kane, Walters and Zuschlag, for respondents.
Judges Williams, Jr., Craig and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 81 Pa. Commw. Page 271]
This is an appeal by claimant Frank Pawlosky from an order of the Workmen's Compensation Appeal Board which affirmed the referee's denial of his claim for benefits under The Pennsylvania Workmen's Compensation Act (Act).*fn1
Pawlosky filed his petition on November 7, 1977, claiming a disability caused by an "occupational disease" as defined in Section 108 of the Act.*fn2 He later amended his claim to assert entitlement under the general compensation provisions of the Act.*fn3 The referee's findings -- which are not challenged here -- reflect that Pawlosky was employed by Latrobe Brewing Company from 1950 to 1977 in a variety of jobs, most of which placed him in contact with caustic substances. Specifically, the referee found that: "During the claimant's entire work history he either worked with or came in contact with the fumes of chlorine, sulphuric
[ 81 Pa. Commw. Page 272]
acid and caustic soda which were general cleaning compounds." Furthermore, the referee found on the basis of the medical evidence adduced in the case that the caustic substances with which Pawlosky came in contact during his employment aggravated a pre-existing asthmatic condition and caused him to be totally disabled. Nevertheless, the referee and Board dismissed the claim on the ground that Pawlosky failed to present any evidence that the incidence of his occupational disease-like injury was substantially greater in his occupation than in the general population, as required by Section 108(n) of the Act.*fn4
Pawlosky does not quarrel with the referee's findings. Indeed, he concedes that he did not present any proof that the injury on which he based his claim occurred with substantially greater frequency in his occupation than in the general population. Rather, the thrust of Pawlosky's argument is that his eligibility for compensation is established by the referee's finding that he was rendered totally disabled by aggravation of a pre-existing medical condition caused by caustic substances to which he was exposed in the workplace. He asserts that his eligibility was established under the general compensation provisions of the Act, and that it was error for the compensation authorities to determine his claim under the standards which apply to occupational diseases. We agree.
[ 81 Pa. Commw. Page 273]
In Stanton v. Ben Rubin Ajax Cleaners-Dyers, 74 Pa. Commonwealth Ct. 628, 460 A.2d 1219 (1983), we addressed the question of whether The Pennsylvania Occupational Disease Act*fn5 applies to work-related aggravation of a pre-existing disease. We held there that the language of the Occupational Disease Act demonstrated a legislative intent to exclude such injuries from its coverage. The holding in Stanton was predicated on our conclusion that, had the legislature intended the Occupational Disease Act to encompass work-related aggravation of pre-existing diseases, it would have employed language identical or similar to that used in Section 301(c) of the Workmen's Compensation Act,*fn6 which states in pertinent part:
(1) The terms "injury" and "personal injury", as used in this act, shall be construed to mean an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury or is ...