Pawlosky v. Workmen's Compensation Appeal Board

Opinion by Judge Williams, Jr., This is an appeal by claimant Prank Pawlosky from an order of the Workmen’s Compensation Appeal Board which affirmed the referee’s denial of his claim for benefits under The Pennsylvania Workmen’s Compensation Act (Act).1 Pawlosky filed his petition on November 7, 1977, claiming a disability caused by an ‘ ‘occupational disease” as defined in Section 108 of the Act.2 He later amended his claim to assert entitlement under the general compensation provisions of the Act.3 The referee’s findings — which are not challenged here — reflect that Pawlosky was employed by Latrobe Brewing Company from 1950 to 1977 in a variety of jobs, most of which placed him in contact with caustic substances. Specifically, the referee found that: “During the claimant’s entire work history he either worked with or came in contact with the fumes of chlorine, sul [272] phuric acid 'and caustic soda which were general cleaning compounds.” Furthermore, the referee found on the basis of the medical evidence adduced in the case that the caustic substances with which Pawlosky came in contact during his employment aggravated a preexisting asthmatic condition and caused him to be totally disabled. Nevertheless, the referee and Board dismissed the claim on the ground that Pawlosky failed to present any evidence that the incidence of his occupational disease-like injury was substantially greater in his occupation than in the general population, as required by Section 108 (n) of the Act.4 Pawlosky does not quarrel with the referee’s findings. Indeed, he concedes that he did not present any proof that the injury on which he based his claim occurred with substantially greater frequency in his occupation than in the general population. Bather, the ■thrust of Pawlosky’s argument is that Ms eligibility for compensation is established by the referee’s finding that he was rendered totally disabled by aggravation of a pre-existing medical condition caused by caustic substances to which he was exposed in the workplace. He asserts that Ms eligibility was established under the general compensation provisions of the Act, and that it was error for the compensation authorities to determine Ms claim under .the standards which apply to occupational diseases. We agree. [273] In Stanton v. Ben Rubin Ajax Cleaners-Dyers, 74 Pa. Commonwealth Ct. 628, 460 A.2d 1219 (1983), we addressed the question of whether The Pennsylvania Occupational Disease Act5 applies to work-related aggravation of a pre-existing disease. We held there that the language of the Occupational Disease Act demonstrated a legislative intent to exclude such injuries from its coverage. The holding in Stanton was predicated on our conclusion that, had the legislature intended the Occupational Disease Act to encompass work-related aggravation of pre-existing diseases, it would have employed language identical or similar to that used in Section 301(c) of the Workmen’s Compensation Act,6 which states in pertinent part: (1) The terms “injury” and “personal injury”, as used in this act, shall be construed to mean an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury or is aggravated, reactivated or accelerated by the injury. . . . (Emphasis added.) Thus, it is clear on the basis of our decision in Stanton that the Board erred in applying occupational disease standards to the injury upon which Pawlosky bases his claim. Furthermore, it is clear that the findings of the referee establish that Pawlosky suffered an “injury” as defined in Section 301(c) of the Workmen’s Compensation Act. In Plasteel Products Corp. v. Workmen’s Compensation Appeal Board, 32 Pa. Commonwealth Ct. 405, 379 A.2d 908 (1977), we held that the [274] work place aggravation of a pre-existing disease constitutes an “injury” under that section even when exposure-type harm does not reach the level of an independent occupational disease. In the instant case, the compensation authorities found that Piaiwlosky was fully disabled, and that his disability was due to work-related agents which aggravated Ms pre-existing asthma condition. The statute reqmr.es him to prove no more. Accordingly, we reverse the Order of the Board, and remand this ease with directions that the Board enter an award of benefits. Order And Now, tMs 2nd day of April, 1984, the order of the Workmen’s Compensation Appeal Board, Docket No. A-79849, dated December 31,1981 is reversed, and the Board is directed to enter an award of benefits to claimant. Footnotes [1] Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1 et seq. [2] 77 P.S. §27.1. Section 108 was added by Section 1 of the Act of October 17, 1972, P.L. 930. [3] In workmen’s compensation cases, amendments of claim petitions are to be liberally allowed; and a petition may be amended even at the time of the referee’s hearing if there is mo change in the facts underlying the claim. Findlay Refractories v. Workmen’s Compensation Appeal Board, 52 Pa. Commonwealth Ct. 454, 415 A.2d 1270 (1980). [4] As Pawlosky’s disability was not due to one of the “occupational diseases” specified in' Section 108, his condition would be compensable as an “occupational disease” only if he met the “catchall” definition of 'Section 108(n), 77 P.S. §27.1(n). That definition requires a claimant to prove that his condition is one to which he was exposed by reason of his employment and is causally related to the industry or occupation in which he was employed; he must also prove that the incidence of the condition is substantially greater in his industry or occupation than in the general population. McHale v. Workmen’s Compensation Appeal Board, 56 Pa. Commonwealth Ct. 344, 425 A.2d 34 (1981). [5] Act of June 21, 1939, P.L. 566, as amended, 77 P.S. §§1201 et seq, [6] 77 P.S. §411.