49 A.2d 631 | Pa. Super. Ct. | 1946
Argued October 28, 1946.
These appeals are from awards granted for total disability and a death claim. Andrew J. Anderson filed a petition under the Pennsylvania Occupational Disease Act of June 21, 1939, P.L. 566,
An award was made under each petition and affirmed by the learned court below. These appeals were taken by the Coal Operators Casualty Company, the carrier for Schroeder Monumental Works, under policies expiring July 13, 1943. The appellant raises four questions, which we will discuss, each of which is resolved against it.
1. It denies liability for the reason that the total disability benefits as distinguished from death benefits, are barred because they did not occur within one year after the date of decedent's last exposure, to wit, December 24, 1942. Section 301 (c) of the 1939 Act supra,
"(c) Compensation for the occupational diseases enumerated in this act shall be paid only when such occupational disease is peculiar to the occupation or industry in which the employee was engaged, . . . and occurring within one year after the date of his last employment in such occupation or industry." (Italics supplied.)
As the learned court below aptly states: "A careful reading of the statute shows that the criterion is the date when the disease occurred and not the date when total disability began. In view of the medical testimony, it is clear that decedent had contracted the disease within the one year's period of limitation as required by the statute."
Decedent was ill and complained of a dry cough in June of 1943. X-rays taken January 12, 1944, disclosed he was suffering from silicosis in the third stage with accompanying tuberculosis. Claimant's medical testimony showed that silicosis is a progressive disease and must necessarily have existed for some time before reaching the third or final stage. The evidence fully supports the finding of the Board that the silicosis was contracted in the employment of Schroeder Monumental Works or within a year thereafter. *623
2. Appellant's next contention is that silicosis was not the sole cause of death, and that inhalation of tetryl powder during decedent's employment with the Hunter Mfg. Co. played a prominent part in causing the disability and death. Dr. Bond, claimant's medical witness, did testify that inhalation of tetryl powder by the decedent while in the employ of the Hunter Mfg. Co. "irritated," the silicosis, "advanced it" and "flared the condition up", "progressed it more rapidly, more fulminating", but this witness expressed the opinion that the decedent would have died of silicosis in any event, that the inhalation of tetryl powder simply hastened his death. Under Section 301 (e) of the Act of 1939,
The evidence here shows, as it did in Roschak et ux. v. VulcanIron Works,
3. The appellant has not persuaded us that the inhalation of tetryl powder by decedent while in the employ of Hunter Mfg. Co. constituted an accident making *624 the disability and death compensable under the Workmen's Compensation Act rather than under the Occupational Disease Act, and there is no finding to that effect. Certainly we cannot declare as a matter of law that such an event was an accident. Appellant is not relieved of liability on this ground.
4. We come now to the appellant's last position. It claims that it is not liable under its policy for either disability or death because disability from silicosis did not occur until January 16, 1944, or six months after its policy with decedent's employer expired, as death did not take place until sixteen months after its policy with Schroeder expired. The theory is again relied upon that the date of disability rather than of the exposure or occurrence of the disease is the pivotal factor in determining the liability of appellant. The appellant's policies in force from July 13, 1939, to July 13, 1943, contained the following provision under its Standard Pennsylvania Occupational Disease endorsement:
"2. The Insuring Company hereby agrees to assume the whole liability of this Insured Employer under the Pennsylvania Occupational Disease Act of 1939 and all Laws amendatory thereof which may be or become effective while this Policy is in force, without any exception, qualification or limitation."
Section 301 (g) of the 1939 Act, supra,
"(g) The employer liable for the compensation provided by this article shall be the employer in whose employment the employe was last exposed to the hazard of the occupational disease claimed, regardless of the length of time of such last exposure: Provided, . . . the only employer liable shall be the last employer in whose employment the employe was last exposed to the hazard of such occupational disease during a period of six months or more after the effective date of this Act . . ." *625
As above observed, it is the exposure that gives rise to the ultimate liability, but no compensation is payable until the disability becomes total: Agostin v. Pittsburgh Steel FoundryCorporation,
The problem of liability of successive insurers under occupational disease contracts has received various solutions. The matter is largely controlled by statute. Under our statute the insurer's liability attached when the employee was afflicted with silicosis. At that time the appellant's policy last issued was in force. Its expiration before the disease caused death did not discharge the existing obligation of the carrier. AlthoughNational Products Co. v. C.C.P., etc.,
The judgment is affirmed.