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SCRANTON CORPORATION ET AL. v. WORKMEN'S COMPENSATION APPEAL BOARD (MORRIS) (05/30/84)

decided: May 30, 1984.

SCRANTON CORPORATION ET AL., PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (MORRIS), RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board in the cases of Sylvania Morris, widow of John v. Scranton Corporation, Nos. A-77452 and A-83017.

COUNSEL

James M. Scanlon, Scanlon, Howley, Scanlon & Doherty, for petitioners.

Howard M. Spizer, for respondent, Sylvania Morris, widow of John Morris.

Judges Rogers, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri. Judge Palladino dissents.

Author: Barbieri

[ 82 Pa. Commw. Page 605]

Scranton Corporation, employer, and its insurer, Employers Fire Insurance Company (Petitioners), appeal here from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision awarding compensation to Sylvania Morris, widow of John Morris, deceased employee, on the ground that the death of her husband was due to occupational disease.*fn1

Deceased employee, John Morris, was awarded compensation during his lifetime for total disability due to occupational disease involving his lungs after

[ 82 Pa. Commw. Page 606]

    fifty-four years of exposure to cotton dust in his employment. At the hearing on the widow's Claim Petition, the record of the prior proceeding was made part of this record by agreement and it is established that the decedent was last employed on October 12, 1973; that he was awarded compensation under date of September 9, 1975 and received total disability benefits from October 21, 1974 until his death on June 7, 1978. The referee's finding No. 4 reads:

4. In a decision dated September 9, 1975 the undersigned Referee found as a fact that the decedent was exposed to and inhaled cotton dust during the entire period of his long employment of approximately 54 years in the textile industry.

Your Referee found as a fact that as a result of his prolonged exposure to cotton dust during his employment with the defendant, the decedent suffered from pulmonary fibrosis, chronic bronchitis and pulmonary emphysema as a result of which he became totally disabled on November 21, 1974.

Your Referee ordered the defendant's insurance carrier to pay to the claimant compensation for total disability at the rate of $106.00 per week from November 21, 1974 and indefinitely thereafter, with deferred payments of compensation bearing interest at the rate of ten percent. The Referee dismissed the Commonwealth of Pennsylvania as a party defendant.

In seeking benefits, the widow's Claim Petition avers that her husband's death resulted from occupational disease under subsections 108(k), 108(n) and 108(p) of The Pennsylvania Workmen's Compensation Act.*fn2

[ 82 Pa. Commw. Page 607]

Our review of the record indicates that recovery herein could not be predicated on silicosis under Section 108(k), but an award could be supported on this record under Section 108(n), the generic, so-called "omnibus," occupational disease provision, or under Section 108(p), byssinosis due to exposure to cotton dust. While the referee's and Board's decisions do not specifically designate under which of these two sections, Sections 108(n) ...


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