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ARLINGTON AUTO BODY SERVICE v. WORKMEN'S COMPENSATION APPEAL BOARD (BOSACK (05/17/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 17, 1985.

ARLINGTON AUTO BODY SERVICE, GENERAL ACCIDENT GROUP AND GENERAL ACCIDENT, FIRE AND LIFE ASSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BOSACK, JR.), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of John Bosack, Jr. v. Arlington Auto Body Service, No. A-82601.

COUNSEL

Matthew R. Wimer, with him, Edwin P. Brown, Jr., Murovich, Reale, Fossee & Ferry, P.C., for petitioners.

Thomas P. Geer, for respondent, John Bosack, Jr.

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

Author: Doyle

[ 89 Pa. Commw. Page 329]

This is an appeal by the Arlington Auto Body Service (Employer) from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision granting benefits to John Bosack, Jr. (Claimant).

Claimant was employed as a frame and body repairman in Employer's body shop when, on October 5, 1979, another employee began painting in the same location, rather than in a separate painting booth where such work was normally performed. After three hours of exposure to the acrylic paint fumes, Claimant became ill and was forced to leave work early. Later that day Claimant began gasping for air and was taken to a hospital where he received treatment for pulmonary insufficiency. Claimant remained under the care of Dr. A. Nathan Alpern, a pulmonary specialist, who advised Claimant not to return to work. Claimant submitted a claim for workmen's compensation benefits, alleging that he was totally disabled as a result of the

[ 89 Pa. Commw. Page 330]

    exposure to paint fumes on October 5, 1979. After a hearing before the referee, Claimant was granted benefits. The Board affirmed,*fn1 and an appeal to this Court followed.*fn2

Before this Court Employer argues that Claimant's disability was not the result of a single incident on October 5, 1979, but was rather the result of an unspecified occupational disease, contracted during his thirty-two years as an automobile repairman. Employer argues therefore that this case is controlled by Crucible Steel Corp. v. Workmen's Compensation Appeal Board, 52 Pa. Commonwealth Ct. 165, 415 A.2d 458 (1980), and Plasteel Products Corp. v. Workmen's Compensation Appeal Board, 32 Pa. Commonwealth Ct. 405, 379 A.2d 908 (1977), and that under the authority of these cases Claimant's claim is for an occupational disease injury under Section 301(c)(2) of the Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(2), rather than for any ordinary injury under Section 301(c)(1) of the Act, 77 P.S. § 411(1). More precisely, Employer asserts that the claim is based on an aggravation of a pre-existing disease which is occupational in nature. Therefore, there must be the proof required under Section 108(n) of the Act, 77 P.S. § 27.1(n).*fn3

[ 89 Pa. Commw. Page 331]

A review of the record before the referee, however, does not support the factual allegation that Claimant's disability resulted from a disease which was occupational in nature.*fn4 Although Dr. Alpern, Claimant's treating physician, testified that Claimant previously suffered from chronic obstructive pulmonary disease, he attributed the disease to a combination of allergies and cigarette smoking, rather than to any condition at work. The underlying disease was not therefore occupational in nature. Dr. Alpern further testified that the inhalation of paint fumes on October 5, 1979 aggravated the disease, causing the acute pulmonary insufficiency which disabled Claimant. This case is thus distinguishable from our decisions in both Crucible and Plasteel, in which claimants were asserting disability from an "injury" which they alleged was occupational in nature.*fn5 In the case sub judice, Claimant

[ 89 Pa. Commw. Page 332]

    is asserting not that his pre-existing disease was occupational, but that his pre-existing non-occupational disease was aggravated by an occupational "injury." We have recently held that where a claim for an occupational disease type of harm is asserted under the general compensation provisions of the Act, that is, a claim under § 301(c)(1), a claimant need not prove that the harm is occupational in nature, Hayden v. Workmen's Compensation Appeal Board (Wheeling Pittsburgh Steel Corp.), 83 Pa. Commonwealth Ct. 451, 479 A.2d 631 (1984), petition for allowance of appeal granted, (9 W.D. App. Dkt. 1985, February 12, 1985). Pawlosky v. Workmen's Compensation Appeal Board (Latrobe Brewing Co.), 81 Pa. Commonwealth Ct. 270, 473 A.2d 260 (1984).*fn6

Dr. Alpern's testimony, which was accepted as credible by the referee,*fn7 provided sufficient basis for the referee's findings that Claimant's disability resulted from a single injury on October 5, 1979, rather than from an occupational disease or a disease that was occupational in nature. Since we may not disturb findings of the referee which are supported by substantial evidence, Asbestos Insulating Co. v. Workmen's Compensation Appeal Board (McGovern), 73 Pa. Commonwealth Ct. 86, 457 A.2d 1320 (1983), we affirm the decision of the Board.

[ 89 Pa. Commw. Page 333]

Order

Now, May 17, 1985, the order of the Workmen's Compensation Appeal Board, Docket No. A-82601, dated June 23, 1983, is hereby affirmed.

This decision was reached prior to the resignation of Judge Williams, Jr.

Disposition

Affirmed.

Concurring Opinion by Judge Palladino:

I concur with the result only for the following reasons. In both Plasteel Products Corp. v. Workmen's Compensation Appeal Board, 32 Pa. Commonwealth Ct. 405, 379 A.2d 908 (1977) and Crucible Steel Corp. v. Workmen's Compensation Appeal Board, 52 Pa. Commonwealth Ct. 165, 415 A.2d 458 (1980), this Court held that the work place aggravation of a pre-existing disease constitutes an "injury" under Section 301(c) of the Pennsylvania Workmen's Compensation Act*fn1 as long as the harm sustained is occupational in nature. To prove that such harm is occupational in nature, a claimant would have to show that the disease is causally related to his industry or occupation and that the disease incidence is substantially greater in the industry or occupation than in the general population. In Pawlosky v. Workmen's Compensation Appeal Board, 81 Pa. Commonwealth Ct. 270, 473 A.2d 260 (1984), however, this Court held that the harm sustained from the work place aggravation of a pre-existing disease need not be occupational in nature. To constitute an injury, a claimant need only show that his disability was a result of work-related agents which aggravated his pre-existing condition. Thus, I do not believe the instant case is distinguishable from both Crucible and Plasteel. Rather, I believe that the holding in this case should be based on both Pawlosky

[ 89 Pa. Commw. Page 334]

    and Hayden v. Workmen's Compensation Appeal Board, 83 Pa. Commonwealth Ct. 451, 479 A.2d 631 (1984), petition for allowance of appeal granted, (9 W.D. App. Dkt. 1985, February 12, 1985), which, in effect, eliminated the requirement of Plasteel and Crucible that the harm sustained from the work place aggravation of a pre-existing disease be occupational in nature.


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