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WILLIAM A. HOLMES v. WORKMEN'S COMPENSATION APPEAL BOARD (SCHNEIDER POWER CORPORATION (06/01/88)

decided: June 1, 1988.

WILLIAM A. HOLMES, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SCHNEIDER POWER CORPORATION, AND COMMERCIAL UNION INSURANCE COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of William A. Holmes v. Schneider Power Corporation, No. A-91151.

COUNSEL

Raymond F. Keisling, Will, Keisling, Ganassi & McCloskey, for petitioner.

Francis E. Pipak, Jr., with him, Louis C. Long, Meyer, Darragh, Buckler, Bebenek & Eck, for respondents.

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

Author: Palladino

[ 116 Pa. Commw. Page 480]

William A. Holmes (Petitioner) appeals from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision dismissing his claim petition. We affirm.

Petitioner was employed by Schneider Power Corporation (Employer) as a material control supervisor. In February of 1982, Petitioner worked in a second floor office located directly above the fabricating plant. Petitioner was off work from February 21, 1982 through May 2, 1982 because, according to Petitioner, the fumes from the fabricating plant were making him sick. During the period of time Petitioner was off, Employer paid him sixty percent of his wages pursuant to a voluntary employee benefits program. On May 3, 1982, Petitioner returned to work and was transferred to a building away from the fabricating plant. Petitioner worked in this new location for two days and had no difficulty doing his work. Petitioner was then laid off for economic reasons.

On May 2, 1983, Petitioner filed a claim petition alleging that on February 20, 1982 he became totally disabled as a result of an occupational disease. The nature of Petitioner's disease was described as chronic throat irritation, head congestion and lethargy.

Hearings were held before a referee. Petitioner presented the deposition testimony of Dr. Friday. Dr. Friday testified that he saw Petitioner on April 22, 1981 and that he believed Petitioner had toxic fume exposure syndrome. Friday deposition at 6. Dr. Friday was of the opinion that the toxic fume exposure syndrome was probably caused by zinc oxide fumes from the fabricating plant. Friday deposition at 7. Dr. Friday testified that Petitioner's problem would abate once he was away from the fumes. Friday deposition at 12. The only limitation Dr. Friday placed on Petitioner was that he stay away from the fumes. Friday deposition at 16.

[ 116 Pa. Commw. Page 481]

The referee found that Petitioner's medical expert failed to provide unequivocal medical evidence to support a finding that Petitioner's exposure at work caused Petitioner to be disabled. Finding of fact no. 19. The referee concluded that Petitioner had failed to meet his burden of proof. Specifically, the referee concluded that Petitioner (1) had not demonstrated an injury which would entitle him to compensation under the Act,*fn1 (2) had not established that he had a disability related to his employment, and (3) had not established a loss of earnings resulting from a work related disability. Conclusions of law nos. 2, 3, and 4. The Board affirmed the referee.

On appeal to this court,*fn2 Petitioner phrases the issue as "whether payment in lieu of compensation requires the employer to comply with statutory mandates calling for the filing of a notice of compensation payable and a petition to terminate" and contends that because Employer did not comply with the Act the referee should have placed upon Employer the burden of proving that Petitioner was not disabled as a result of work related disability. Petitioner's argument is based on Mosgo v. Workmen's Compensation Appeal Board (Tri-Area Beverage, Inc.), 84 Pa. Commonwealth Ct. 316, 480 A.2d 1285 (1984). In Mosgo, an employer, ...


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