187 Pa. Super. 630 | Pa. Super. Ct. | 1958
Opinion by
Claimant’s employment with the defendant Tread-well Engineering Company in Pennsylvania began in 1942 and continued until August 25, 1956. For approximately 14 months immediately prior to the date in 1942 when claimant first went to work for the defendant, he was employed by. Taylor-Wharton Iron and Steel Company at High Bridge in New Jersey. He was a laborer throughout the terms of both employments. During the 14 months in New Jersey he worked in his employer’s foundry handling dry and dusty sand. He performed identical work shoveling dusty sand in defendant’s foundry, until January 31, 1954 when he was assigned to sand blasting castings, followed by operations on an emery wheel. In every phase of claimant’s work wherever performed in Pennsylvania and New Jersey there was dust in the air and throughout his employment beginning in New Jersey and continuing with the defendant in Pennsylvania he was exposed to a silica hazard. It is admitted that he had become totally disabled from silicosis when he quit his work on August 25, 1956. And it must be conceded that he is entitled to compensation for total disability under The Pennsylvania Occupational Disease Act of June 21, 1939, P. L. 566, as amended by the Act of February 28, 1956, P. L. (1955) 1095, 77 PS §1201 et seq. The dispute here therefore is as to where the liability to pay the award rests. The referee, the Board and the lower court all concluded that the Commonwealth of Pennsylvania alone was liable.
The liability of the employer for the payment of 60% of the compensation for disability for occupational disease under §308(a) of the Act was specifically made subject to the operation of §301 (g), 77 PS §1401, as amended, which provided: “. . . when a claimant alleges that disability or death was due to silicosis, anthraco-silicosis, asbestosis or any other occupational disease which developed to the point of disablement only after an exposure of five or more years, 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: And provided further, That in those cases where disability or death is not conclusively proven to be the result of such last exposure, all com
It is generally recognized that silicosis by its very nature is a disease which progresses, from its incidence on exposure to the hazard, over a period of years to the point of disablement. McIntyre v. Lavino & Co. et al., 344 Pa. 163, 25 A. 2d 163. The claimant’s work for the Taylor-Wharton Company in New Jersey had to do exclusively with the handling of dry moulder’s sand. The air in the foundry was dusty and he was exposed to a silica hazard throughout his employment there. In his employment with the defendant on every job to which he was assigned he was also exposed to the same hazard. The medical testimony is that claimant, on and after August 25, 1956, was totally disabled from silicosis in its final stage, as a result of the exposures and there was no testimony that the incidence of the disease did not occur during the New Jersey employment. The referee from a realistic analysis of the testimony found: “It has not been conclusively proved that the claimant’s disability is the result of his last exposure to a silica hazard while employed by the defendant”; and the board affirmed the finding.
The appellant however contends that under §101 of the Act of June 21, 1939, P. L. 566, 77 PS §1201 liability for all compensation due the claimant cannot be imposed on the Commonwealth under the above subsequent amendment to the Act. Section 101 provided: “It [the Act] shall apply to disabilities and deaths caused by occupational disease as defined in this act, resulting from employment within this Commonwealth, irrespective of the place where the contract of hiring was made, renewed, or extended, and shall not apply to any such disabilities and deaths resulting from employment outside of the Commonwealth.” With
Claimant certainly was a Pennsylvania employe and under §101 was entitled to compensation although his disability did not result exclusively from employment within this Commonwealth. The board and the lower court both construed §101 of the Act thus: “This section merely establishes what persons come within the purview of the Statute, but once a Pennsylvania employee establishes his right to compensation, attention must be directed to other sections of the Act to ascertain liability for such compensation payments.” With this construction we agree. Moreover as suggested by the board it is a consideration of importance that the legislature, in imposing the obligation to pay on the Commonwealth under §301 (g) in an amendment fourteen years after §101 was enacted, did not see fit to exclude exposure in prior employment outside the Commonwealth as an element material to the issue. Section 101 has no relevancy on the question of the extent of the Commonwealth’s liability once it is determined that a claimant is entitled to an award.
The conclusion of the board was a reasonable inference from the testimony in this case and the judg
Judgment affirmed.