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ONFREY SULYMA v. WORKMEN'S COMPENSATION APPEAL BOARD (MINERSVILLE AREA SCHOOL DISTRICT) (08/11/88)

decided: August 11, 1988.

ONFREY SULYMA, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (MINERSVILLE AREA SCHOOL DISTRICT), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Onfrey Sulyma v. Minersville Area School District, No. A-91447.

COUNSEL

Lester Krasno, for petitioner.

Frank L. Tamulonis, with him, Paul J. Dufallo, Zimmerman, Lieberman & Derenzo, for respondent.

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

Author: Barbieri

[ 118 Pa. Commw. Page 484]

Onfrey Sulyma (Claimant) petitions for review of the order of the Workmen's Compensation Appeal Board (Board) dismissing his claim petition under the occupational disease provisions of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1601.1. We affirm.

Claimant was employed as a custodian for Minersville Area School District (Employer) from 1957 to 1977. Prior to 1957, Claimant worked as an underground miner in the anthracite coal mining industry for ten years. From 1957 to 1968, Claimant worked in the boiler room of the old Minersville Area High School, tending the hand fired coal boilers that heated the school. It was his responsibility to shovel the coal that heated the boilers directly into the coal furnace. In 1968, Claimant taught a year of metal shop class and was subsequently promoted to supervisor of custodians. In 1972, a new high school was built utilizing an automatic coal feeder for the coal boilers. Claimant continued to maintain an office in the boiler room adjacent to the enclosed coal bin but no longer shoveled coal. A subordinate assumed primary responsibility for operating the furnaces, although Claimant assisted him in

[ 118 Pa. Commw. Page 485]

    maintaining the system. Claimant retired in 1977. He was subsequently notified by his treating physician that he had developed anthraco-silicosis and this claim petition followed.

It is Claimant's burden under Sections 301(c) and 108(q) of the Act, 77 P.S. §§ 413 and 27.1(q), respectively, to prove that after June 30, 1973, the effective date of the new occupational disease provisions of the Act, he was exposed to coal dust during the course of his employment. See Mathies Coal Company v. Workmen's Compensation Appeal Board (Kozlevchar), 41 Pa. Commonwealth Ct. 542, 399 A.2d 790 (1979). The referee found that Claimant was not exposed to coal dust during the course of his employment after June 30, 1973, did not suffer from anthraco-silicosis or any other occupational disease within the meaning of Section 108(q) or Section 108(n) and consequently was not entitled to the presumption of Section 301(c) that such occupational disease arose out of and in the course of his employment. The Board affirmed.

The referee's key findings are that after 1972 the new Minersville Area High School was equipped with automatic coal stokers, that the coal delivered to feed these stokers was already processed coal, washed and wet when delivered, and that there is no significant silica present in processed coal which has been separated, sized and washed (Referee's Findings of Fact Nos. 9, 10, 16). There is substantial evidence in the record to support these findings and to conclude that Claimant was not exposed after June 30, 1973 to the hazards of an occupational disease.

Claimant testified that after 1972, it was only necessary to hand fire or start the coal boilers once every year and it was the primary responsibility of the fireman, Dan Weiderhold, to do this (N.T. 9/2/82, p. 30). ...


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