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ADAMS STEEL ERECTION v. WORKMEN'S COMPENSATION APPEAL BOARD (KLAVONICK) (06/24/88)

decided: June 24, 1988.

ADAMS STEEL ERECTION, INC., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (KLAVONICK), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Ingalls Iron Works & Adams Steel Erection, Inc., and Songer Construction Corporation and Middle States Steel Constr. and Schneider, Inc., and Ferguson Steel Erection and Eichleay Corporation and Pevarnik Brothers, Inc. and OWB Corporation and Central Counties Steel Erectors, Inc., and Alpha Company and American Bridge Division, U.S. Steel, and Vogt & Conant Company and Ken Thelen Company, Inc., and Salem Furnace Company and Atlas Alloy Maintenance & Erection Company and Keystone Erectors, Inc., and Bridge Specialists and Adams Steel Erection, Inc., and Dick Corporation and Gould Erectors & Riggers, Inc., and G.M. McCrossin, Inc., and McKamish Chesapeake, Inc., and Minotte Construction & Erection Corporation and Durr Industries, Inc., a/k/a Otto Durr, Inc., and Penn Erection & Rigging Company, Inc., and Research-Cottrell, Inc., and Westmoreland Construction Company, Inc., and Jervis B. Webb Company, No. A-89236.

COUNSEL

Edward D. Klym, with him, David H. Trushel & Associates, for petitioner.

Amiel B. Caramanna, Jr., with him, Alexander J. Pentecost, for respondent, Charles Klavonick.

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

Author: Craig

[ 117 Pa. Commw. Page 291]

Adams Steel Erection (Adams) appeals an order of the Workmen's Compensation Appeal Board which affirmed a referee's decision awarding compensation benefits to Charles Klavonick under section 108(n) of the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 27.1(n).*fn1 We affirm.

[ 117 Pa. Commw. Page 292]

The claimant worked as an iron worker in the welding industry for various employers from June, 1947 until November 12, 1982. The claimant worked for Adams during the months of July, August and September of 1976, and also during October and November of 1982 as an erector. In the performance of his duties as an iron worker, the claimant spent 90% of his time as an electric arc welder and 10% of his time with a cutting torch. At Adams Steel the claimant worked as an erector using wrenches and a sledge to "vertical" columns. The claimant worked indoors and outdoors, and his position entailed a great deal of climbing near coke plants and similar installations, during which time exposure to gas and fumes occurred.

Approximately three years before his retirement, and during his employment with Adams, the claimant began experiencing shortness of breath and difficulty in climbing and lifting.

The claimant applied for benefits. At hearings before a referee, evidence from a pulmonary disease physician indicated that the claimant was disabled by mixed dust pneumoconiosis, primarily arc welder's pneumoconiosis.

The referee made the following factual finding:

TENTH: The referee finds as a fact, based on all the evidence received, both medical and lay, that the claimant's testimony relative to his exposures in his employment history is credible testimony. This Referee also finds as a fact that the claimant is partially disabled from mixed dust pneumoconiosis that is a result of his exposures to various dusts while in the employ of various employers throughout his employment

[ 117 Pa. Commw. Page 293]

    history, that the claimant cannot return to his duties as an arc welder in the profession of an iron worker and that there are no duties that the defendants have shown that the claimant could perform with his disability and educational background and in labor market area. This Referee makes this finding based on the more credible testimony of the claimant's medical witness, Dr. J. D. Silverman, as well as the credible testimony of the claimant himself.

On the basis of the testimony, the referee awarded the claimant disability benefits for an occupational disease as defined in section 108(n) of the Act. The board affirmed, and Adams appealed.

Our scope of review in an appeal from the board is limited to determining whether an error of law was committed, constitutional rights were violated, or whether there was substantial evidence in the record to support such factual findings. Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987).

Adams initially contends that no substantial evidence exists to support a finding that the claimant was exposed to any hazard in his employment with Adams. Adams also asserts that an unqualified imposition of liability on the last employer is a denial of due process.

In Fruehauf Corp., Independent Metal Division v. Workmen's Compensation Appeal Board (Cornell), 31 Pa. Commonwealth Ct. 341, 345-48, 376 A.2d 277, 279-80 (1977), this court stated that, in order to receive benefits under 108(n), a claimant must satisfy three criteria:

First, it requires that a claimant be exposed to a disease by reason of his employment. Stated differently, a claimant must show that the occupational disease is a hazard of his employment and

[ 117 Pa. Commw. Page 294]

    that he was exposed to it. To satisfy this requirement, a claimant may reasonably identify or describe the causative factors of the disease, demonstrate that the factors are significantly present in his ...


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