188 Pa. Super. 1 | Pa. Super. Ct. | 1958
Opinion by
George 8. Crandall filed a claim petition under The Pennsylvania Occupational Disease Act,
The question involved on this appeal, as stated by counsel for appellants, is as follows: “Is there any evidence in the record which would support a finding that George 8. Crandall was exposed to a silica hazard for an aggregate of four years in the eight years next preceding the date of his disability?” This statement is premised on the language of Section 301(d) of the Act as worded and in effect at the time Crandall became totally disabled, and which then read as follows: “Compensation for silicosis . . . shall be paid only when it is shown that the employe has had an aggregate employment of at least four years in the Commonwealth of Pennsylvania during a period of eight years next preceding the date of disability in an occupation hava silica . . . hazard”.
“Section 301(d) does not require a claimant to show an aggregate of four 365-day years in order to qualify . . . The Legislature . . . provided the four year minimum period as the line below which disability would not be considered as having resulted from exposure. The provision, however, is a general one, lacking explicit instructions on its application to specific cases. Consequently it is necessary in each case to determine each claim on the basis of its particular facts, keeping constantly in mind the humane purpose of the Act and the mandate to construe and apply it liberally . . . Individual cases, like individual disabilities, must be individually determined. The Legislature intended no strict and unreasonable, cold and arbitrary measure of providing compensation . . . There can be no set mechanical formula laid down which must be applied with mathematical certainty in each and every case, striking down those which fall just below the line and compensating those who come just above it. Nor can we set forth any percentage formula applicable to all cases . . . Such an arbitrary mechanical system would be unreasonable and unfair, in addition to bearing no relationship whatever to a determination of the cause and effect aspect of silicosis”: Milavech v. Berwind-White Coal Co., 180 Pa. Superior Ct. 194, 119 A. 2d 652.
The argument of counsel for appellants is set forth in the following excerpt from his brief: “Those records indicate that the claimant performed no sand blasting operations until the week ending May 12, 1946, one and one-third years after beginning work. Except for a brief period of sand blasting in March and April of 1952, the claimant did no sand blasting after the week ending September 23, 1951. In 1946, he spent 31% of his time at sand blasting; in 194?, 35%; in 1948, 29%; in 1949, 31%; in 1950, 30%; in 1951, 27% and
Appellants rely on Kraesko v. Black Lick Mining Co., 175 Pa. Superior Ct. 455, 106 A. 2d 665, alleging that we therein sustained an award by using a similar method of calculation. However, it was expressly pointed out in our opinion that the facts in each case must determine the nature and extent of a claimant’s exposure. President Judge Rhodes said: “In the present case there existed an unbroken course of employment by claimant with appellant. It was not based upon ‘a mere continuation of the contract of employment’ without any exposure. There was an actual exposure of claimant to the silica hazard throughout the entire term of his employment”. Such was essentially the situation in the case at bar. The hourly breakdown
Appellants also cite Tokash v. Early Foundry Co., 157 Pa. Superior Ct. 467, 43 A. 2d 553, and Bingaman v. Baldwin Locomotive Works, 159 Pa. Superior Ct. 29, 46 A. 2d 512, but these cases can be readily distinguished. In the Tokash case, the claimant had successive periods of employment, some of which did not involve exposure to a silica hazard, and the Board found that claimant had worked at the job involving a silica hazard for less than four years. In the Bingaman case, while claimant’s decedent had been employed by the defendant over a total period of five and one-half years, there had been extended intervals during this period when he was either working at farming and lumbering for others or not working at all, so that his total employment for the defendant in a job involving a silica hazard amounted to only three and one-half years.
In order not to prolong this opinion unduly, we will simply state that we are not in accord with appellants’ rigid and adverse method of calculation of claimant’s actual exposure period. In the words of the court below: “The defendant’s present proposed percentage breakdown of decedent’s employment is but a thinly disguised repetition of the argument that a claimant must prove 1,460 full days of exposure. We reject such contention. Where a claimant has been actually, continuously and sufficiently exposed to a silica hazard over a period of more than four years, he is entitled to the benefits under the Occupational Disease Act when he becomes a victim of the hazards
Judgments affirmed.
Act of June 21, 1939, P. L. 566, 77 P.S. 1201 et seq.
The amendment of February 28, 1956, P. h. (1955) 1095, has reduced the requirement to an aggregate employment of at least two years in the Commonwealth during a period of ten years next preceding the date of disability.