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DONALD SANDUSKY v. WORKMEN'S COMPENSATION APPEAL BOARD (CHICAGO BRIDGE & IRON CO.) (02/21/85)

decided: February 21, 1985.

DONALD SANDUSKY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CHICAGO BRIDGE & IRON CO.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Donald Sandusky v. Chicago Bridge & Iron Co., No. A-82710.

COUNSEL

Joel Persky, Baskin and Sears, P.C., for petitioner.

Robert G. Rose, Spence, Custer, Saylor, Wolfe & Rose, for respondent, Chicago Bridge & Iron Co.

Judges Rogers, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Rogers. This decision was reached prior to the resignation of Judge Williams, Jr.

Author: Rogers

[ 87 Pa. Commw. Page 606]

Donald Sandusky (claimant) has filed a petition for review of an order of the Workmen's Compensation Appeal Board (board) affirming a referee's decision denying him benefits for his alleged total disability on the ground that he failed to meet his burden to prove that the incidence of the condition of which

[ 87 Pa. Commw. Page 607]

    he complained -- aggravation of his genetic lung disease -- was greater in the welding industry than in the general population, as required by Section 108(n) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 27.1(n).

The claimant was employed by the Chicago Bridge & Iron Company as a welder for seven years during which time he was exposed to carbon and copper dust, asbestos and argon. In 1978 he filed a claim petition, alleging that he was totally disabled as a result of a "chronic obstructive severe lung disease," described by his doctors as alpha-1 anti-trypsin deficiency, which is a genetic disease. The referee dismissed the claimant's petition because the claimant "failed to prove by competent, credible, and substantial evidence that he is totally and permanently or, in the alternative, partially disabled as the result of any occupationally acquired lung disease or any other disease related to his employment."

On January 3, 1980, the claimant filed an appeal with the board from the referee's decision, and on April 17, 1980, the claimant moved by petition to the board for leave to amend his claim petition, drawn inartfully by the claimant himself, so as to aver that he had suffered a compensable injury within the meaning of Section 301(c). In the same petition, the claimant asked for a remand to the referee. The board granted the remand to give the claimant an opportunity to meet the requirements set forth in Plasteel Products Corporation v. Workmen's Compensation Appeal Board, 32 Pa. Commonwealth Ct. 405, 379 A.2d 908 (1977), but took no action with respect to the amendment. In Plasteel, we concluded that the term "injury" when used in an occupational disease context includes occupation-related harm

[ 87 Pa. Commw. Page 608]

    which does not amount to a separate occupational disease. We also stated that:

[A] claimant who does not suffer from an occupational disease, the occurrence of which can at least in part be attributed to the employer, may nevertheless demonstrate that he sustained a disease-like injury during his employment by proving that he was exposed to harm by ...


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