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PITTSBURGH BOARD EDUCATION v. WORKMEN'S COMPENSATION APPEAL BOARD (PERKINS) (08/12/87)

decided: August 12, 1987.

PITTSBURGH BOARD OF EDUCATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (PERKINS), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Daniel R. Perkins v. Pittsburgh Board of Education, No. A-86688.

COUNSEL

David H. Dille, Assistant Solicitor, with him, Robert J. Stefanko, Solicitor, for petitioner.

Joel Persky, Henderson & Goldberg, P.C., for respondent, Daniel R. Perkins.

Judges Craig and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 108 Pa. Commw. Page 363]

The Pittsburgh Board of Education (Petitioner) has appealed an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of benefits to Daniel R. Perkins (Claimant). We affirm.

The referee had awarded benefits to Claimant for a totally disabling occupational disease under Section 108(n) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of the Act of October 17, 1972, P.L. 930, 77 P.S. § 27.1(n), and the Board affirmed on the same grounds. Petitioner contends that benefits should have been denied because Claimant failed to establish the necessary causal connection between the workplace and the injury through unequivocal medical testimony, and that Claimant failed to prove that the incidence of his disease was substantially greater in his occupation than in the general population. Alternatively, Petitioner argues that Claimant has also failed to establish an injury under Section 301(c)(1) of the Act, 77 P.S. § 411(1), because he did not prove that he sustained an aggravation of a pre-existing disease. Finally, Petitioner alleges a violation of its constitutional rights due to the referee's consideration of a letter sent to him by Claimant's counsel after the proceedings were closed.

Claimant was employed by Petitioner as a cleaner. On August 11, 1982, while cleaning a swimming pool with other employees, Claimant was exposed to chlorine fumes when a co-worker unknowingly put two handfuls of powdered chlorine in a bucket containing

[ 108 Pa. Commw. Page 364]

    muriatic acid. Claimant breathed the fumes that were emitted and experienced coughing and gagging that day. The next day, he was admitted to the hospital when he began experiencing chest pains. He was hospitalized for a week, and never returned to work. Claimant's physician, Dr. Claypool, diagnosed Claimant's resulting disability as bronchiolitis obliterans with obliteration of distal air units or severe alveolar-capillary injury. He testified, as did Claimant, that Claimant continues to suffer from a shortness of breath, and is unable to resume his duties. The referee accepted as credible both Claimant's and his physician's testimony.

In accordance with our scope of review, we must decide whether necessary factual findings are supported by substantial, competent evidence, whether an error of law has been made, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

Petitioner's first argument is that Claimant failed to meet his burden in establishing a Section 108(n) occupational disease. We note initially that Section 108(n) of the Act sets forth three requirements in order to have a disease which is not specifically named as an occupational disease classified as such: "All other diseases (1) to which the Claimant is exposed by reason of his employment, and (2) which are causally related to the industry or occupation, and (3) the incidence of which is substantially greater in that industry or occupation than in the general population. . . ."

Petitioner asserts that Claimant's evidence did not establish the second requirement of a causal connection between the injury ...


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