33 Pa. Commw. 190 | Pa. Commw. Ct. | 1977
Opinion by
The Scranton Garment Co. (employer) appeals here from an order of the Workmen’s Compensation Appeal Board (Board) which affirmed a referee’s decision awarding compensation for total disability to Anthony Crapella (claimant) because of an occupational disease.
The claimant worked for the employer for a period of thirty-six years as a presser. In the course of his duties, he worked with various types of cloth and ma
Section 427 of the Act, 77 P.S. §876.1, provides that this Court’s scope of review in workmen’s compensation appeals is that defined in Section 44 of the Administrative Agency Law,
We must first of all determine under which section benefits were awarded. The referee made the following finding:
5. On March 5, 1975 the claimant became totally disabled due to chronic obstructive pul*193 monary disease, mainly of a chronic bronchial asthmatic type. This disease is the result of exacerbation in claimant’s occupation involving direct contact with, handling of, or exposure to cotton dust, cotton materials, or cotton fi-.-. bers. He was so exposed in his employment by the defendant from 1938 to November 8, 1974, including his employment from July 1, 1973 to November 8, 1974. '
The claimant’s application indicated that benefits were being sought under Sections 108 (n) and:108(p) of the Act, 77 P.S. §§27.1(n), 27.1(p), and Section 108(p) defines as an occupational disease:
(p) Byssinosis in any occupation involving direct contact with, handling of, or exposure to cotton dust, cotton materials, or cotton fibers.
Although, therefore, the finding states that the claimant was exposed to the hazard indicated in Section 108 (p), it does not say that the claimant has byssinosis. We believe that he was awarded compensation under the omnibus section of the occupational disease provisions of the Act, Section 108 (n) ,
It should be noted that Section 108 (n) contains three requirements: (1) the claimant must be exposed
The order of the Board is therefore vacated and this case is remanded to the Board for further proceedings consistent with this opimon.
Order
And Now, this 28th day of December, 1977, the order of the Workmen’s Compensation Appeal Board dated September 2, 1976 and docketed at number A-71460 is hereby vacated and the case remanded for further proceedings consistent with this opinion.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §1 et seq.
Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. §1710.1 et seq.
Section 108(n) of the Act, 77 P.S. §27.1 (n), provides as follows:
(n) All other diseases (1) to which the claimant is exposed by reason of his employment, and (2) which are causally related to the industry or occupation, and (3) the incidence of which is substantially greater in that industry or occupation than in the general population. For the purposes of this clause, partial loss of hearing in one or both ears due to noise; and the diseases silicosis, anthraco-silicosis and coal workers' pneumoconiosis resulting from employment in and around a coal mine, shall not be considered occupational diseases.
The evidence a claimant must present to qualify for compensation under Section 108(n) is ably discussed by Judge Mencer in the recent cases: Freuhauf Corp. v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 341, 376 A.2d 277 (1977), and Millcraft Corp. v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 322, 376 A.2d 283 (1977).