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FRANK PAWLOSKY v. WORKMEN'S COMPENSATION APPEAL BOARD AND LATROBE BREWING COMPANY. APPEAL LATROBE BREWING COMPANY (05/29/87)

decided: May 29, 1987.

FRANK PAWLOSKY
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND LATROBE BREWING COMPANY. APPEAL OF LATROBE BREWING COMPANY



Appeal from the Order of the Commonwealth Court of Pennsylvania dated April 2, 1984 at No. 76 C.D. 1982, reversing the Order of the Workmen's Compensation Appeal Board at No. A-79849, entered on December 3, 1981. Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala, and Papadakos, JJ. McDermott, J., joins in this opinion and files a concurring opinion. Zappala, J., joins in this opinion and in the concurring opinion of McDermott, J. Hutchinson, J., files a dissenting opinion.

Author: Nix

[ 514 Pa. Page 451]

OPINION

This is an appeal by allowance from an order of the Commonwealth Court reversing the denial of workmen's compensation benefits to the appellee herein, Frank Pawlosky. The issue before us is whether a disability caused by the job-related aggravation of a pre-existent disease, not specifically designated as an "occupational disease" by section 108 of The Pennsylvania Workmen's Compensation Act

[ 514 Pa. Page 452]

("Act"),*fn1 is compensable pursuant to the general "injury" provisions in section 301(c)(1) of the Act.*fn2

From April 1950 until October 1977, Frank Pawlosky (claimant) was employed at the Rolling Rock Brewery of the Latrobe Brewing Company ("Latrobe"), a business engaged in the manufacture of beer. During that twenty-seven year period Pawlosky worked for Latrobe in various capacities, including the jobs of carbonator, "beer dropper" and cellarman. However, for twenty-three years of his career at the brewery Pawlosky worked in the fermenting cellars, an assignment which required him to periodically clean and sterilize tanks with a solution of chlorine. During the course of a work day he was also exposed to the fumes of such other chemical agents as caustic soda and sulphuric acid, which were also used by the employer for cleaning purposes.

In November of 1977 Pawlosky filed a claim petition for workmen's compensation, alleging that he had become disabled by an "occupational disease" within the coverage of section 108 of the Act. The petition further averred that the disability was caused by a lung infection and an asthmatic condition resulting from his long exposure to the fumes of chlorine and other chemical solutions used at the brewery. Latrobe responded with an answer demanding proof of the claim. Thereafter, the claimant amended his petition to assert entitlement under the general compensation provisions of the Act, namely, section 301(c)(1).

In the proceedings before the referee, claimant Pawlosky testified as to his employment history and described certain breathing problems which, having started several years prior, caused him to leave his job at the brewery in October of 1977. He admitted on cross-examination that he had been, at one point in his life, a heavy smoker of cigarettes. The claimant also stated that, after receiving various professional

[ 514 Pa. Page 453]

    diagnoses of his breathing problem, he was finally advised by another physician in March, 1977, that he was suffering from a severe bronchial asthmatic condition.

Pawlosky's medical witness in the proceedings was Dr. Raymond Mayewski, who testified that the claimant was suffering from an obstructive disease of the bronchial airways and that the condition could be classified as asthma. Dr. Mayewski defined asthma as a hyper-reactivity of the bronchial airways to irritants, and explained that when irritation occurs the result is a bronchospasm, or asthmatic attack, which is characterized by wheezing and shortness of breath. This witness could not say how or when the claimant contracted asthma, but he was of the opinion that fumes from the chemicals to which the claimant was exposed at the workplace would irritate the ailment and cause attacks. Based on that opinion, Dr. Mayewski concluded that the claimant was no longer able to engage in his former employment at the brewery. Regarding irritation of the claimant's asthma, the doctor conceded that a variety of non-occupational stimuli could have the same effect.

Latrobe's medical witness, Dr. C. Vaughn Strimlan, described the claimant's condition as being a severe, chronic, obstructive pulmonary disease. Dr. Strimlan agreed that the condition would be aggravated or irritated by the chemicals at the brewery, and that the claimant should not return to such an environment. This witness also opined that the claimant's basic ailment would be irritated by a number of other agents, including cigarette smoke, paint fumes and even hair spray. Going further, however, Dr. Strimlan took the position that Mr. Pawlosky's underlying respiratory malady had been caused by the heavy smoking of cigarettes over a period of many years, and did not result from any job-related exposure.

Based on the medical and other evidence adduced at the hearings, the referee found that the claimant had asthma, that the ailment was aggravated by the fumes of chlorine, caustic soda and sulphuric acid, and that he was totally disabled as a result. After noting that the claimant did not

[ 514 Pa. Page 454]

    proceed to prove his case "in an occupational disease context", the referee then found that the claimant's exposure to the said chemical fumes in the workplace did not cause "a separate occupational disease" but rather aggravated an asthmatic condition that was pre-existent. The referee next determined that, since the asthma was not one of the occupational diseases specifically mentioned in sections 108(a)-(m) or (o)-(q) of the Act, it became incumbent upon the claimant to establish his case under the omnibus provision in section 108(n), 77 P.S. § 27.1(n), which accords to any other disease the status of an "occupational disease" if certain factors are proved.*fn3 Observing that one of the requirements under section 108(n) is that such other disease have an incidence in the claimant's work which is "substantially greater in that industry or occupation than in the general population," the referee dismissed Pawlosky's claim petition because no such proof had been offered. It is obvious from the referee's decision that he rejected the claimant's assertion that section 301(c)(1) provided a basis for compensation, even though the decision made no express reference to that contention.

The claimant followed with an appeal to the Workmen's Compensation Appeal Board ("Board"), which affirmed the referee's decision. The Board reasoned that the claimant sought benefits for an "occupational disease-like injury" and that such was compensable only under section 108(n). The Board therefore concluded that, since he had not satisfied the proof demands of that section, the claimant could not prevail.

Pawlosky filed a petition for review in the Commonwealth Court. That court reversed the Board and entered an order mandating an award of benefits. Pawlosky v. Workmen's Compensation Appeal Board (Latrobe Brewing Co.), 81 Pa. Commw. 270, 473 A.2d 260 (1984). In its resolution of

[ 514 Pa. Page 455]

    the case, Commonwealth Court held that the workplace aggravation of a pre-existent disease constituted an "injury" within the meaning of the current version of section 301(c) of the Act, even if the exposure-type harm is not proven to be an occupational disease within the compass of section 108. Based on the evidence and the referee's findings in the matter, the court further held that the claimant was entitled to benefits by force of section 301(c)(1). Thus, in the view of the Commonwealth Court, the referee and the Board had erred in applying occupational disease standards to the claim.

Latrobe responded to the above decision by petitioning this Court for an allowance of appeal, which we granted. Since in this appeal there is no challenge to any of the referee's factual findings, or any assertion that constitutional rights have been violated, our scope of review is confined to a determination of whether an error of law was committed. See Workmen's Compensation Appeal Board v. Bernard S. Pincus Co., 479 Pa. 286, 388 A.2d 659 (1978); McGee v. L.F. Grammes & Sons, Inc., 477 Pa. 143, 383 A.2d 864 (1978); Utter v. Asten-Hill Mfg. Co., 453 Pa. 401, 309 A.2d 583 (1973).

The appellant argues, of course, that the referee and the Board were correct in deciding that claimant Pawlosky had to prove his case pursuant to the omnibus provision in section 108(n) of the Act. To amplify this contention the appellant begins by pointing out that the claimant's underlying asthmatic condition, though medically classifiable as a disease, is not specifically included in the statutory schedule of "occupational diseases", and that the condition was not in itself caused by any workplace exposure. The appellant then emphasizes that the claimant's asthma is an ailment common in the general population and one that can be aggravated by a variety of non-occupational causes. Having armed itself with the above premises, the appellant argues that the claimant's right to receive workmen's compensation, for the aggravation of his asthmatic condition by on-job irritants, required proof that the incidence of aggravation

[ 514 Pa. Page 456]

    was substantially greater in his industry or occupation than in the general population. According to the appellant, it was not enough for Pawlosky to prove that the disabling aggravation was in fact caused by his work environment; he had to go further and show that his work-related exposure to aggravation was of the comparative degree required by section 108(n).

In support of its argument the appellant states that "since 1972 it has been the clear legislative intent to define 'injury' in terms of (1) the old pre-1972 concept of 'accidental injury', and (2) the occupational disease definitions which had previously only appeared in the Pennsylvania Occupational Disease Act of 1939." Having fashioned this interpretation of the current Pennsylvania Workmen's Compensation Act, the appellant concludes that where the harm in question involves a disease the exclusive route to compensation is through the occupational disease provisions of section 108.

As originally enacted in 1915 The Pennsylvania Workmen's Compensation Act provided benefits only for injury or death resulting from an "accident" in the course of employment. Sections 101, 301(a), 77 P.S. §§ 1, 431 (1915) (amended 1972). The word "injury" was statutorily defined as meaning "only violence to the physical structure of the body, and such disease or infection as naturally results therefrom . . . ." Section 301(c) of the Act, 77 P.S. § 411 (1915) (amended 1972). Although the original Act specifically defined the term "injury," the statute contained no definition of the word "accident." Therefore, the task of defining what was an "accident" within the meaning of the Act had to be assumed by the courts; and they proceeded to interpret that word essentially in accordance with its usual, ordinary and popular sense. See Lacey v. Washburn & Williams Co., 309 Pa. 574, 164 A. 724 (1933); McCauley v. Imperial Woolen Co., 261 Pa. 312, 104 A. 617 (1918).

It has been observed that the word "accident" in the original Act was deliberately left free of precise statutory definition to keep ...


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