Opinion
Argued November 17, 1980
February 19, 1981.
Workmen's compensation — The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566 — Pulmonary infarction — Disease common to general public.
1. An employe may properly be found to have established that a condition of bronchitis, pulmonary edema and pulmonary infarction caused by his exposure to a substance at work was not common to the general population and is compensable under The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, when medical evidence demonstrates that the cause and extent of the disease in the employe was unlike that seen in the general populace. [27]
Judge ROGERS filed a concurring opinion which was substantially as follows:
1. A condition of chronic bronchitis and other pulmonary conditions may properly be deemed to be compensable when sufficient evidence supports a finding that the disease to which the employe was exposed in his employment and from which he suffers is peculiar to his occupation in cause and in the characteristics of its manifestation. [28]
Argued November 17, 1980, before President Judge CRUMLISH and Judges ROGERS and BLATT, sitting as a panel of three.
Appeal, No. 2582 C.D. 1979, from the Order of the Court of Common Pleas of Allegheny County in case of Genevie Santelli v. Westinghouse Electric Corporation, No. SA 1255 of 1978.
Petition with the Department of Labor and Industry for occupational disease benefits. Petition granted. Employer appealed to the Workmen's Compensation Appeal Board. Award affirmed. Employer appealed to the Court of Common Pleas of Allegheny County. Appeal dismissed. NARICK, J. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
C. Robert Keenan, with him Robert W. Murdoch, Jones, Gregg, Creehan and Gerace, for appellant.
Arnold D. Wilner, with him Theodore Goldberg, Baskins Sears, for appellee.
The Workmen's Compensation Appeal Board (Board) affirmed a referee's award of compensation benefits to Genevie Santelli. On appeal, the Court of Common Pleas of Allegheny County sustained the Board. We affirm.
Santelli, an employe of Westinghouse Electric Corporation from January 9, 1969 until November 10, 1971, filed a claim petition under the Occupational Disease Act (Act) on March 27, 1973.
Act of June 21, 1939, P.L. 566, as amended, 77 P. S. § 1201 et seq.
Santelli contends that her use of the chemical spray "Krylon" has caused her to contract an occupational disease. Santelli's job as an electronic circuit board assembler required her to spray the assembled boards with krylon. The spraying process accounted for 75% of her work load and was done in a room which measured three feet by six feet. At her hearing, Santelli's physician diagnosed her medical condition as chronic bronchitis, pulmonary edema and recurrent pulmonary infarction. The physician further testified that in his opinion Santelli's medical condition was directly caused by her exposure to krylon.
Krylon contains the gas, toluene. Toluene is a liquid aromatic hydrocarbon, C7H8, that resembles benzene but is less volatile, flammable and toxic. Websters Third New International Dictionary, 2406 (1966).
Santelli relies on Section 108(n) of the Act, which states in relevant part:
The term 'occupational disease,' as used in this act, shall mean only the following diseases:
. . . .
(n) All other occupational diseases (1) to which the claimant is exposed by reason of his employment, and (2) which are peculiar to the industry or occupation, and (3) which are not common to the general population.
77 P. S. § 1208(n), added by Section 1 of the Act of February 28, 1956, P.L. (1955) 1095.
Westinghouse contends that Santelli has failed to demonstrate that her bronchial condition is not common to the general public within the meaning of Section 108(n). We disagree.
Westinghouse bases its contention on the following testimony as elicited from Santelli's physician on cross-examination.
Q. I understand your final diagnosis of Mrs. Santelli is chronic bronchitis. Is that correct?
A. Correct.
Q. Pulmonary emphysema.
A. Right.
Q. And pulmonary infarction.
A. Pulmonary infarction.
Q. These three final diagnoses are common to the general public. Aren't they?
A. Yes they are.
However, on both direct and redirect, Santelli's physician explained the causation and extent of her bronchitis thusly:
Q. So that we are clear, Doctor, is it your professional opinion that the materials Mrs. Santelli was exposed to at work, was the cause of the lung problems that you have diagnosed and described?
A. I think that I would say yes.
Q. Do you think they cause the lung problems?
A. I think they did.
Moreover, on redirect, Santelli's physician explained the extent of her disease vis-a-vis the general population in the following manner:
Q. Doctor, these three conditions you diagnosed in Mrs. Santelli — I believe you indicated on direct examination that the frequent and severe incidence of pulmonary infarction you found in her is not common in the general population.
A. I never had anything like her. Never.
Q. And never had anyone like her in the general population —
A. I never had one like her in my thirty years of practice.
It is apparent that Westinghouse misconstrues the intent of Section 108(n) of the Act. The statutory language as it applies to demonstrating a disease which is not common to the general public is not merely addressed to the simple presence of a disease but also its causation and extent. See Henry v. Workmen's Compensation Appeal Board, 36 Pa. Commw. 262, 387 A.2d 523 (1978).
As there was sufficient evidence before both the referee and the Board to support a finding that Mrs. Santelli suffered an occupational disease because of her exposure to krylon, we can discern no basis in this instant appeal to disturb these findings.
Westinghouse also argues that it was denied a subrogation right pursuant to Section 319 of the Occupational Disease Act, 77 P. S. § 1419. However, the Court of Common Pleas correctly stated that no right will exist without a showing that a subrogation agreement was made.
ORDER
The decision of the Court of Common Pleas of Allegheny County is hereby affirmed.
I concur in the result of this case because there is sufficient evidence in the record supporting the finding that the claimant's chronic bronchitis and her other conditions, while common to the general population, were "peculiar to the claimant's occupation by [their] causes and the characteristics of [their] manifestation." Utter v. Asten-Hill Mfg. Co., 453 Pa. 401, 309 A.2d 583 (1973). See also Dunn v. Commonwealth, 41 Pa. Commw. 69, 398 A.2d 260 (1979); Polansky Bakery v. Workmen's Compensation Appeal Board, 39 Pa. Commw. 189, 394 A.2d 1324 (1978).