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decided: August 31, 1988.


Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Harold C. Marcks, Claimant v. City of Allentown, Dept. of Public Safety, Bureau of Fire, No. A-89853.


John P. Thomas, for petitioner.

Howard M. Ellner, for respondent.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Palladino did not participate in the decision of this case.

Author: Barbieri

[ 119 Pa. Commw. Page 215]

Harold C. Marcks (Claimant) petitions for review of the order of the Workmen's Compensation Appeal Board (Board) which denied his claim petition filed under Section 108(o) of 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. § 27.1(o), alleging disability from emphysema caused by thirty-three years of fire fighting. We reverse.

Claimant was employed by the City of Allentown (Employer) as a fire fighter from 1942 until his retirement on a disability pension in 1975. On January 3, 1978, Claimant filed the instant claim petition. After a series of hearings, the referee dismissed the petition finding that Claimant had failed to prove that he was totally or partially disabled due to exposure to the hazard of an occupational disease. The Board affirmed. Claimant appealed, and this Court in Marcks v. Workmen's Compensation Appeal Board (City of Allentown), 65 Pa. Commonwealth Ct. 107, 442 A.2d 9 (1982), remanded,

[ 119 Pa. Commw. Page 216]

    holding that the referee's summation of the facts did not constitute sufficient fact finding on the crucial issues to enable this Court to exercise review.

On remand, the referee has made new findings without taking any further testimony and once again rejected this claim. The referee found, based on the testimony of both Claimant's and Employer's medical experts, that Claimant had chronic bronchitis, pulmonary emphysema, pulmonary fibrosis, obstructive lung disease, and possible early myocardial disease, and was totally disabled from performing the duties of a fire fighter or any work involving severe exertion or exposure to dust or smoke. However, the referee accepted the testimony of Employer's medical expert that Claimant's chronic bronchitis and emphysema were solely and directly caused by Claimant's forty year history of smoking from half a pack to one pack of cigarettes per day, and that Claimant's thirty-three years exposure to smoke, fumes, gasses and dust while fighting fires had no permanent effect on Claimant's lungs in any respect.*fn1 (Referee's Finding of Fact No. 8.) The referee further concluded that Claimant was not employed in an occupation in which emphysema, bronchitis, or obstructive pulmonary disease is a hazard within the meaning of Section 301(c) or (e) of the Act, 77 P.S. §§ 1401(c) and (e), respectively.

Claimant testified that during the first ten years of his fire fighting employment he did not use any air packs or oxygen breathing apparatus. He stated that he was treated for smoke inhalation on several occasions and would come back from fires "spitting black for three days." (N.T. 3/3/78, p. 5) He began seeing a doctor for

[ 119 Pa. Commw. Page 217]

    the pulmonary condition of bronchitis in 1966. Claimant testified that for the next eleven years, after every fire his chest would tighten up and he would experience breathing difficulties (N.T. 3/3/78, p. 7). Claimant's medical expert testified that he first began prescribing antibiotics and bronchodilators for Claimant in 1966, and that Claimant's condition became progressively worse after every fire until he retired on a disability pension and moved to Arizona in 1975 (N.T. 11/20/78, pp. 7-8). This was the only factual testimony presented in the case. On the basis of it and the opinion of Employer's medical expert, the referee concluded that Claimant's disability was solely caused by cigarette smoke.

In addition, the referee to buttress his second decision raised an entirely new issue of notice. The referee found that Claimant had first been examined by a physician who informed him he had lung disease in February of 1977, but that Claimant had not mailed notice to his former Employer of his pulmonary condition until June of 1977. The referee held that Claimant had failed to provide notice of his occupational disease to Employer within 120 days of the date that Claimant should have known he was disabled under Section 311 of the Act, 77 P.S. § 1411. The referee found Claimant's testimony that he had informed Employer of his bronchial condition upon his retirement in 1975 insufficient to satisfy the Section 311 requirement.*fn2 The Board's opinion affirmed the referee's decision with respect to notice, but did not mention any of the other issues in the case.

We first consider whether the referee has exceeded the scope of our remand order by raising the entirely

[ 119 Pa. Commw. Page 218]

    new issue of notice. Our prior opinion remanded this case to the Board for the limited purpose of allowing the referee to make specific findings of fact and conclusions of law with respect to the crucial issues. The referee's first decision did not contain any reference to the issue of notice or Section 311. The referee raised this issue himself in his second ...

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