22 Pa. Commw. 109 | Pa. Commw. Ct. | 1975
Opinion by
This is an employer’s appeal from an order of the Court of Common Pleas of Allegheny County affirming an award of compensation under The Pennsylvania Occupational Disease Act
Mr. Scobbo began his forty-four years of continuous employment with the appellant, Heppenstall Company
In 1969 Mr. Scobbo consulted a Doctor Thomas P. Connelly who, after examination, reported on October 19,
Heppenstall advances two reasons for reversal of the award. It first contends that the claimant failed to give the notice required by Section 311 of The Pennsylvania Occupational Disease Act, 77 P.S. §1411, which reads:
“Unless the employe or someone in his behalf, or some of the dependents or someone in their behalf, shall give notice of disability to the employer liable for compensation under this article, within twenty-one days after compensable disability begins, no compensation shall be due until such notice be given, and unless such notice be given within one hundred and twenty days after the beginning of compensable disability no compensation shall be allowed.”
Heppenstall’s argument is based on recent decisions of the Workmen’s Compensation Appeal Board in which it asserts that the Board decided that the provision cited had not been complied with in allegedly similar circum
Heppenstall also says that the claimant did not sustain his burden to prove his exposure to hazard at the appellant’s plant during the course of his employment. Its first argument on this point seems to be that in occupational disease cases, the physician testifying as to causation must be an expert in pulmonary diseases who has actually made studies and examinations of employees in various industries. The only authority suggested for this asserted requirement is Metz v. Quakertown Stove Works, 156 Pa. Superior Ct. 70, 39 A.2d 534 (1944), where the claimant seems to have found an expert medical witness who had these qualifications. Neither Metz nor any other case we have found holds that a medical witness testifying that the claimant’s occupational disease was the result of exposure at work must be an expert in industrial
Heppenstall also says that the claimant’s testimony as to his exposure was insufficient. It states that he only “established . . . that he worked in a ‘dusty’ area and ‘handled’ silica sand.” On the contrary, the claimant established that for years he ground tools and chipped billets with wheels bearing the written description “silicon” and that these wheels emitted heavy dust from which he had no protection. This evidence constituted ample evidence that the claimant was employed in an occupation in which his occupational disease was a hazard, and raised the statutory presumption that his disease arose out of and in the course of his employment. Section 301 (f) of The Pennsylvania Occupational Disease Act, 77 P.S. §1401 (f). The facts that the claimant ground tools with wheels made of silicon and that he had contracted silicosis were not rebutted. The only evidence adduced by the appellant was a report of an inspection of various areas of its plant made in December 1969, more than a year after the claimant retired, tending to show that in the areas inspected dust concentrations were below the criteria “set by most industrial hygienists.” This was clearly insufficient to rebut the presumption afforded by the Act. The cases of Moyer v. Brockway Clay Company, 14 Pa. Commonwealth Ct. 610, 324 A.2d 876 (1974), and Billet v. Keystone Roofing Manufacturing Company, 6 Pa. Commonwealth Ct. 23, 291 A.2d 921
Affirmed.
. Act of June 21, 1939, P.L. 566, as amended, 77 P.S. §1201 et seq.
. The codefendant, Commonwealth of Pennsylvania, which was directed to pay a part of the award, has not appealed.