Jеannette District Memorial Hospital (Employer) appeals from an order of the Workmen’s Compensation Appeal Board (Board), which reversed a referee’s decision and granted Florence Mesich (Claimant) disability benefits under the Workers’ Compensation Act.
Claimant was employеd by Employer as a registered nurse, working in the Intensive Care Unit, where she was constantly exposed to blood and bodily fluids. In November of 1986,
Claimant filed a Claim Petition on Sеptember 7, 1989, alleging that she was totally disabled as of September 28, 1986 from having contracted infectious hepatitis in the course of her employmеnt. Claimant alleged that her exposure to infectious blood and bodily fluids while working for Employer caused the hepatitis. Employer denied Claimant’s allegations and affirmatively averred that the claim was barred by the statute of limitations.
A hearing was held before the referee
EIGHT:
B) The Claimant is suffering from non-A, non-B hepatitis (hepatitis C),
C) The Claimant gave timely notice to the employer in June of 1987, when she first learned her hepatitis wаs work-related-[Employer].
D) The Claimant was totally disabled from hepatitis from November 1,1986 to February 1,1988 and has been partially disabled since February 1, 1988,
E) The Clаimant’s testimony as to the method of her contracting hepatitis C lacks credibility as to the specifics....
F) The Claimant’s medical expert lacks crеdibility as to the causation of the Claimant’s hepatitis....
*251 H) The Claimant has failed to sustain her burden of proof that she suffered non-A, non-B hepatitis (hepatitis C) as a result of an exposure to said disease while in the employ of the defendant.
(Finding of Fact No. 8, B-H).
Claimant appealed to the Board, which reversed the rеferee, granted disability benefits, and remanded the case for calculation of benefits. Employer now appeals to this Court.
On appeal, Employer argues that Claimant failed to prove by substantial evidence that her injury was causally related to her employment.
Section 301(e) states in pertinent part:
If it be shown that the employe, at or immediately before the date of disability, was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed that the employe’s occupational disease arose out of and in the course of his employment but this presumption shall not be conclusive. (Emphasis added.)
Section 108(m) states in relevant part:
The term ‘occupation disease,’ as usеd in this act, shall mean only the following diseases.
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(m) Tuberculosis, serum hepatitis, or m-fectious hepatitis in the occupations of blood processors, fractionators, nursing, or auxiliary services involving exposure to such diseases. (Emphasis added.)
Generally, for a claimant tо receive benefits, he or she must establish that (1) his or her injury arose in the course of employment, and (2) that the injuiy was causally connected to his or her employment. Povanda v. Workmen’s Compensation Appeal Board (Giant Eagle),
It is undisputed that Claimant in this case was employed as a nurse and that her disability was due to infeсtious hepatitis. (Finding of Fact No. 8, (B, D).) Under Section 108(m) of the Act, infectious hepatitis contracted by a claimant while employed in the occupation of nursing, as a matter of law, is an occupational disease.
Employer’s evidence was insufficient to rebut the presumption that Claimant’s disease was work-related. Employer presented the testimony of Dr. Michael Malinger and Dr. Wayne Peternel. Dr. Malinger testified that he could not establish within a reasonable degree of medical certainty what had caused Claimant’s hepatitis. (Deposition оf Dr. Malinger at 26; R.R. at 195.) Dr. Peternel also testified that he was unable to determine the cause of Claimant’s hepatitis. (Deposition of Dr. Peternel at 14; R.R. at 214.) Therefore, Employer did not produce substantial evidence rebutting the presumption that Claimant had acquired hepatitis within the course of her employment.
Since Claimant has established that she suffered from an occupational disease and Employer has failed to establish that the causе of her injury was not related to her employment, we affirm the Board’s order and remand this case for the calculation of her benefits.
ORDER
NOW, Decembеr 5, 1995, the order of the Workmen’s Compensation Appeal Board in the above-captioned matter is hereby affirmed. This case is remanded to the Board for calculation of Florence Mesich’s disability benefits.
Jurisdiction relinquished.
Notes
. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4.
. Claimant had surgery in November of 1986 for an osteomyelitis condition.
.After August 31, 1993, referees аre referred to as Workers' Compensation Judges under the 1993 amendments to the Act, 77 P.S. § 701. See Section 14 of the Act of July 2, 1993, P.L. 190 (Act 44).
. On March 12, 1992 with an effective date of July 6, 1992, Rule 311(f) was added to the Rules of Appellate Procedure to permit appeals from "an order of a common pleas court or government unit remanding a matter to аn administrative agency or hearing officer for execution of the adjudication of the reviewing tribunal in a manner that does not require the exerсise of administrative discretion_" Pa.R.A.P. 311(f).
. Employer also raised an issue as to the timeliness of Claimant’s notice to Employer as required by Section 311 of thе Act, 77 P.S. § 631; however, since Employer failed to raise that issue in a cross appeal from the referee's decision to the Board, the issue is waived. Wing v. Unemployment Compensation Board of Review,
.Employer argues that Claimant had to prove exposure to the hepatitis virus; however, this argument is misplaced. Section 108(m) only requires that claimants in "auxiliaiy services” prove exposure. See Browning-Ferns Industries of Pennsylvania v. Workmen’s Compensation Appeal Board (Jones),