Opinion
Argued September 11, 1978
December 12, 1978.
Workmen's compensation — Remand for impartial medical testimony — Discretion of Workmen's Compensation Appeal Board — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Occupational disease — Chronic bronchitis with emphysema — Substantial evidence.
1. The Workmen's Compensation Appeal Board has discretion in a workmen's compensation case to remand a case to a referee for testimony from an impartial physician with expertise in a special area of difficult resolution, and the exercise of such discretion will not be disturbed on appeal unless it is manifestly abused. [191]
2. A condition diagnosed as chronic bronchitis with emphysema may properly be categorized as an occupational disease entitling an employe disabled therefrom to benefits under The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736, when competent evidence establishes that the disease is causally related to the occupation of the employe and the incidence of that disease in that occupation is substantially greater than in the general population, and statutory provisions to this effect must be liberally construed. [192-3]
3. A disease may properly be found to constitute an occupational disease under The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736, although the disease exists among members of the general public as well, if competent evidence establishes that the disease is peculiar to the claimant's occupation, by its causes and the characteristics of its manifestation, and findings of fact to that effect will not be disturbed on appeal when supported by substantial evidence. [193]
Argued September 11, 1978, before Judges BLATT, DiSALLE and MacPHAIL, sitting as a panel of three.
Appeal, No. 1581 C.D. 1977, from the Order of the Workmen's Compensation Appeal Board in case of Joseph Wisniewski v. Polansky Bakery, No. A-72605.
Petition with the Department of Labor and Industry for disability benefits. Benefits awarded. Employer appealed to the Workmen's Compensation Appeal Board. Order vacated. Case remanded for additional testimony. Benefits awarded. Award reinstated by referee. Employer appealed to the Workmen's Compensation Appeal Board. Award affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
John R. Lenahan, Jr., with him Lenahan, Dempsey Murphy, for petitioner.
Charles P. Dattola, with him Laster, Strohl, Kane Mattes, and James N. Diefenderfer, for respondents.
Polansky Bakery (Employer) appeals from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's award to Joseph Wisniewski (Claimant) under the provisions of Section 108(n) of the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, added by Section 1, Act of October 17, 1972, P.L. 930, as amended, 77 P. S. § 27.1. We affirm.
Claimant had worked in the baking industry for approximately fifty (50) years and for most of that period was exposed to flour dust. His last day of employment was March 8, 1974. Claimant was awarded compensation by the referee for total disability caused by chronic bronchitis with severe emphysema. Both the Claimant and the Employer presented medical testimony before the referee. When the Employer appealed the referee's decision to the Board, the referee's order was vacated and the claim was remanded to the referee for the appointment of an impartial physician "with sufficient expertise to determine whether claimant's chronic bronchitis with emphysema was peculiar to claimant's occupation as a baker." Upon the appointment of such a physician, and after hearing his testimony, the referee reinstated his previous order. That order was affirmed by the Board. This appeal followed.
The authority for the appointment of an impartial physician is found in Section 420 of the Act, 77 P. S. § 831.
The Employer contends that the Board erred when it remanded the case to the referee for impartial medical testimony rather than reversing the referee and dismissing the claim because there was insufficient evidence to sustain the referee's findings. This Court has held that the authority of the Board to order impartial testimony is discretionary. Workmen's Compensation Appeal Board v. Delgado, 22 Pa. Commw. 138, 348 A.2d 447 (1975). In the absence of a manifest abuse of discretion, the exercise thereof should not be disturbed. In the case now before us the Board reviewed the conflicting medical testimony presented before the referee. It did not confine its remand order to a "third opinion," but directed that the impartial physician should be someone of "sufficient expertise" to present testimony which would satisfy the Board with respect to the specific question which was troubling it. We have no doubt that the Board's remand order was a proper exercise of the discretion vested in it by the Legislature.
The Employer's second argument is that neither the testimony of the Claimant's physician, nor of the physician appointed by the referee, established that the Claimant suffered a compensable occupational disease under Section 108(n) of the Act. All three physicians agreed that the Claimant was totally disabled by pulmonary insufficiency. The Claimant's physician and the impartial expert diagnosed the Claimant's disease as chronic bronchitis with emphysema. The Employer's diagnosis was allergic bronchial asthma with secondary emphysema. The issue to be resolved is whether the Claimant's disability resulted from an occupational disease.
In order to receive benefits under Section 108(n), the Claimant must establish by competent evidence that the disease from which he suffers is an occupational disease and that he was exposed to the disease during the course of his employment. Fruehauf Corp. v. Workmen's Compensation Appeal Board, 31 Pa. Commw. 341, 376 A.2d 277 (1977). Under the statutory language of Section 108(n), a disease qualifies as an occupational disease only when it is causally related to the industry or occupation in which the Claimant is engaged and when the incidents of that disease in that occupation or industry is substantially greater than in the general population. The Employer argues that there must be strict compliance with the statutory language. However, this Court held in another case construing the provisions of Section 108(n) that the Act is a remedial statute and is due liberal construction. Millcraft Corp. v. Workmen's Compensation Appeal Board, 31 Pa. Commw. 322, 376 A.2d 283 (1977). In any event, we do believe that the medical evidence here is sufficient. The Claimant's medical witness testified that the Claimant was suffering from his disease because of "his exposure of 50 years to one particulate, in this case, it's flour." The impartial medical witness testified that the Claimant's disability was "certainly made worse, if not totally caused by his exposure while on the job to the obvious inhalants." At another point, that same witness testified:
I think we are learning, especially of recent times, that the number of noxious agents which can cause pulmonary insufficiency are increasing at an alarming rate. That is to say our knowledge of them causing pulmonary insufficiency are increasing at an alarming rate and that certainly one of the inhalants which has come under considerable discussion in medical literature is exposure of the type of which Mr. Wisniewski has had . . . flour dust and inhalants in a bakery.
Our Supreme Court has held that when a disease exists in the general public, it may also be an occupational disease if it is shown by competent evidence that the disease is peculiar to the claimant's occupation, by its causes and the characteristics of its manifestation. Utter v. Asten-Hill Manufacturing Co., 453 Pa. 401, 309 A.2d 583 (1973) and Dunn v. Merck Co., Inc., 463 Pa. 441, 345 A.2d 601 (1975). In the Dunn case and in Williams v. Spaulding Bakeries, Inc., 464 Pa. 29, 346 A.2d 3 (1975), the Supreme Court emphasized that the findings of the Workmen's Compensation Appeal Board are binding upon this Court on the very issues raised by the Employer here. We are satisfied that the Board's findings are based upon substantial evidence and therefore they may not be disturbed.
A case involving "baker's asthma."
Accordingly, the order of the Workmen's Compensation Appeal Board, dated July 21, 1977, must be affirmed.
ORDER
AND NOW, this 12th day of December, 1978, the order of the Workmen's Compensation Appeal Board, dated July 21, 1977, is affirmed. It is ordered that judgment be entered in favor of Joseph Wisniewski and against Polansky Bakery or its insurance carrier at the rate of $70.00 per week from May 31, 1974, and indefinitely thereafter, subject to the provisions and limitations of the Pennsylvania Workmen's Compensation Act.
Deferred payments of compensation shall bear interest at the rate of 10 per centum per annum from the due date hereof.