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STEPHEN TROUT v. WORKMEN'S COMPENSATION APPEAL BOARD (PERMALI (07/24/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 24, 1987.

STEPHEN TROUT, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (PERMALI, INC.), RESPONDENT

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Stephen G. Trout v. Permali, Inc., No. A-86668.

COUNSEL

Joel Persky, Henderson & Goldberg, P.C., for petitioner.

Michael D. Sherman, Fried, Kane, Walters & Zuschlag, for respondent.

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

Author: Palladino

[ 107 Pa. Commw. Page 630]

This is an appeal by Stephen Trout (Petitioner) from a decision of the Workmen's Compensation Appeal Board. The Board affirmed a referee's decision denying Petitioner's claim for benefits pursuant to The Workmen's Compensation Act.*fn1 For the reasons which follow, we affirm.

Petitioner filed a Workmen's Compensation Claim Petition on June 24, 1981, alleging that he was totally disabled from pneumoconiosis as a result of "exposure to resins, glass filament shavings during my employment since 1969. . . ." Petitioner was employed by Permali, Inc. (Employer) in excess of ten years. He testified that he was exposed to sawdust particles from both raw and epoxy resin treated wood, silica dust, fiberglass particles and various chemical odors. He also stated that he smoked one to one and one-half packs of cigarettes a day, beginning in about 1938.

In July of 1977, Petitioner began experiencing breathing problems and sought medical attention. Thereafter, in August, 1977, his physician informed him that he was suffering from emphysema and other lung obstructing diseases. Petitioner's physician encouraged him to stop working at that time. However, Petitioner continued working until May 19, 1979, when he took a leave of absence and subsequently quit. There is no dispute that Petitioner is totally disabled.

By order dated July 29, 1983, the referee denied Petitioner's Workmen's Compensation Claim petition because: 1) Petitioner failed to provide Employer with

[ 107 Pa. Commw. Page 631]

    sufficient notice of his injury as required under the Act; and 2) Petitioner "failed to meet his burden of proof to establish a work-related disabling disease obtained while in the course and scope of his employment . . . so as to entitle him to compensation" pursuant to Section 108(n) of the Act.*fn2 The Board affirmed the referee's decision on March 15, 1984.*fn3

On appeal to this Court, Petitioner asserts that it was an error of law for the referee to require him to meet the Section 108(n) burden of proof.*fn4 He asserts that Pawlosky v. Workmen's Compensation Appeal Board (Latrobe Brewing Co.), 81 Pa. Commonwealth Ct. 270, 473 A.2d 260 (1984) aff'd, 514 Pa. 450, 525 A.2d 1204 (1987), and Hayden v. Workmen's Compensation Appeal Board (Wheeling Pittsburgh Steel Corp.), 83 Pa. Commonwealth Ct. 451, 479 A.2d 631 (1984), require us to reverse the Board and award benefits because he "sustained a disease-like injury during his employment by showing that his exposure to various dusts aggravated and accelerated his condition and ultimate disability." Petitioner's brief at 9. We disagree.

[ 107 Pa. Commw. Page 632]

Q. What was that Doctor?

A. In my opinion, his condition is not related to his work.

Q. Do you have an opinion as to what was the cause of this gentleman's condition?

A. Yes, I believe his condition is due to his 42-pack year smoking history.

Q. Is that a significant history of smoking, doctor?

A. Yes, it is.

Sacks Deposition at pg. 9.

Q. Was he disabled at Permali with industrial bronchitis or chronic bronchitis from that? Could he return to that setting?

A. Well, to answer the first part of your question, I don't think he is disabled from bronchitis. I think he is disabled from emphysema. I think if we could eliminate the bronchitis, which I think is a minor portion of the problem, I think he would be disabled from emphysema alone.

Sacks Deposition at pg. 37.

Q. According to your opinion, he is not disabled as a result of his bronchitis?

A. Yes. The bronchitis alone would not be disabling to him in my opinion.

Sacks Deposition at pg. 39.

Dr. Sacks' testimony clearly indicates that the disability from which Petitioner suffers is emphysema, caused by the smoking of cigarettes. Although Dr. Shott, Petitioner's medical expert, testified to the contrary, "this court has consistently held that the task of resolving conflicts in medical testimony lies solely with the referee, and where the referee's findings are supported by substantial evidence, the courts will affirm the decision of the Board." McCarter v. Workmen's Compensation Appeal Board (Boeing Vertol Co.), 94 Pa. Commonwealth Ct. 261, 267,

[ 107 Pa. Commw. Page 634503]

A.2d 990, 993 (1986).

Dr. Sacks' testimony constitutes substantial evidence in support of the referee's finding of fact that Petitioner's condition was not work-related. "If there is no work related injury, there can be no compensation under the Act." Werner v. Workmen's Compensation Appeal Board (Bernardi Brothers, Inc.), 102 Pa. Commonwealth Ct. 463, 468, 518 A.2d 892, 894 (1986). Accordingly, we affirm.

Order

And Now, July 24, 1987, the order of the Workmen's Compensation Appeal Board in the above-captioned matter is affirmed.

Disposition

Affirmed.


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