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WILLIAM H. WERNER v. WORKMEN'S COMPENSATION APPEAL BOARD (BERNARDI BROTHERS (12/12/86)

decided: December 12, 1986.

WILLIAM H. WERNER, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BERNARDI BROTHERS, INC. AND MAGNETICS PERFECTION ELECTRIC, INC.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of William H. Werner v. Bernardi Brothers, Inc. and Magnetics Perfection Electric, Inc., No. A-86791.

COUNSEL

John L. Sampson, with him, Matthew G. Guntharp, Appel, Yost & Sorrentino, for petitioner.

R. Burke McLemore, Jr., Thomas & Thomas, for respondent, Bernardi Brothers, Inc.

Douglas B. Marcello, Mancke, Lightman & Wagner, for respondent, Magnetics Perfection Electric, Inc.

Judges Barry and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino. Dissenting Opinion by Senior Judge Kalish.

Author: Palladino

[ 102 Pa. Commw. Page 465]

Petitioner, William H. Werner, appeals from an order of the Workmen's Compensation Appeal Board (Board) affirming the dismissal of his claim petition for compensation under Section 108(n). The Pennsylvania Workmen's Compensation Act (Act).*fn1 We affirm.

From October, 1976 until March 12, 1982 Petitioner worked as a production leadman for a business which manufactured small gear reducers. In February or March of 1980 a foaming operation was added to the manufacturing process. The foaming operation utilized a chemical mixture containing polymericisocyanates. The operation took place in a large room in which the entire manufacturing process was located. Vapors were produced during the foaming process. Petitioner filed a claim for compensation on August 14, 1982, alleging he developed bronchial asthma as a result of breathing in chemicals at his work place.

The referee found that Petitioner had been diagnosed as having emphysema related to cigarette smoking. He further found that Petitioner had been a one-half to one pack per day smoker for many years until quitting in December 1980. Additionally, the referee found that Petitioner had been diagnosed as being allergic to cat and dog dander, chickens, house dust, trees, grasses, ragweed and that Petitioner raised chickens at his home, had a dog and lived in an environment where he was exposed to various trees and grasses. See Referee's Findings of Fact, Nos. 17, 18, 19 and 21. Although Petitioner's doctor testified that in his opinion the fumes from the foaming operations were the cause of Petitioner's bronchial asthma, the referee found that Petitioner's condition was not work related.

[ 102 Pa. Commw. Page 466]

The referee concluded that Petitioner had failed to prove the required elements of Section 108(n) of the Act,*fn2 and on August 19, 1983, dismissed Petitioner's claim. Petitioner appealed to the Board on September 12, 1983, claiming that the referee had capriciously disregarded competent evidence. On October 18, 1984, prior to a decision by the Board, Petitioner filed a motion with the Board to amend his claim to include a claim under 301(c) of the Act*fn3 and a petition for remand to the referee. On August 30, 1985, the Board affirmed the referee's dismissal of Petitioner's claim because the referee found his condition was not work related. The Board did not rule on his motion to amend.*fn4 A petition for review was filed with this Court.

Petitioner asserts that: (1) his doctor's testimony was capriciously disregarded and therefore the Board erred in not considering whether his claim was compensable under Section 301(c) as well as under Section 108(n) of the Act; (2) the findings of fact are not supported by substantial evidence; and ...


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