Pawlosky v. Workmen's Compensation Appeal Board

525 A.2d 1204, 514 Pa. 450, 1987 Pa. LEXIS 711

• Court: Supreme Court of Pennsylvania
• Decided: May 29, 1987
• Docket: 88 W.D. Appeal Docket, 1984
• Status: Published

Opinions

OPINION

NIX, Chief Justice.

This is an appeal by allowance from an order of the Commonwealth Court reversing the denial of workmen’s compensation benefits to the appellee herein, Frank Pawlosky. The issue before us is whether a disability caused by the job-related aggravation of a pre-existent disease, not specifically designated as an “occupational disease” by section 108 of The Pennsylvania Workmen’s Compensation Act (“Act”),¹ is compensable pursuant to the general “injury” provisions in section 301(c)(1) of the Act.²

From April 1950 until October 1977, Frank Pawlosky (claimant) was employed at the Rolling Rock Brewery of the Latrobe Brewing Company (“Latrobe”), a business engaged in the manufacture of beer. During that twenty-seven year period Pawlosky worked for Latrobe in various capacities, including the jobs of carbonator, “beer dropper” and cellar-man. However, for twenty-three years of his career at the brewery Pawlosky worked in the fermenting cellars, an assignment which required him to periodically clean and sterilize tanks with a solution of chlorine. During the course of a work day he was also exposed to the fumes of such other chemical agents as caustic soda and sulphuric acid, which were also used by the employer for cleaning purposes.

In November of 1977 Pawlosky filed a claim petition for workmen’s compensation, alleging that he had become disabled by an “occupational disease” within the coverage of section 108 of the Act. The petition further averred that the disability was caused by a lung infection and an asthmatic condition resulting from his long exposure to the fumes of chlorine and other chemical solutions used at the brewery. Latrobe responded with an answer demanding proof of the claim. Thereafter, the claimant amended his petition to assert entitlement under the general compensation provisions of the Act, namely, section 301(c)(1).

In the proceedings before the referee, claimant Pawlosky testified as to his employment history and described certain breathing problems which, having started several years prior, caused him to leave his job at the brewery in October of 1977. He admitted on cross-examination that he had been, at one point in his life, a heavy smoker of cigarettes. The claimant also stated that, after receiving various professional diagnoses of his breathing problem, he was finally advised by another physician in March, 1977, that he was suffering from a severe bronchial asthmatic condition.

Pawlosky’s medical witness in the proceedings was Dr. Raymond Mayewski, who testified that the claimant was suffering from an obstructive disease of the bronchial airways and that the condition could be classified as asthma. Dr. Mayewski defined asthma as a hyper-reactivity of the bronchial airways to irritants, and explained that when irritation occurs the result is a bronchospasm, or asthmatic attack, which is characterized by wheezing and shortness of breath. This witness could not say how or when the claimant contracted asthma, but he was of the opinion that fumes from the chemicals to which the claimant was exposed at the workplace would irritate the ailment and cause attacks. Based on that opinion, Dr. Mayewski concluded that the claimant was no longer able to engage in his former employment at the brewery. Regarding irritation of the claimant’s asthma, the doctor conceded that a variety of non-occupational stimuli could have the same effect.

Latrobe’s medical witness, Dr. C. Vaughn Strimlan, described the claimant’s condition as being a severe, chronic, obstructive pulmonary disease. Dr. Strimlan agreed that the condition would be aggravated or irritated by the chemicals at the brewery, and that the claimant should not return to such an environment. This witness also opined that the claimant’s basic ailment would be irritated by a number of other agents, including cigarette smoke, paint fumes and even hair spray. Going further, however, Dr. Strimlan took the position that Mr. Pawlosky’s underlying respiratory malady had been caused by the heavy smoking of cigarettes over a period of many years, and did not result from any job-related exposure.

Based on the medical and other evidence adduced at the hearings, the referee found that the claimant had asthma, that the ailment was aggravated by the fumes of chlorine, caustic soda and sulphuric acid, and that he was totally disabled as a result. After noting that the claimant did not proceed to prove his case “in an occupational disease context”, the referee then found that the claimant’s exposure to the said chemical fumes in the workplace did not cause “a separate occupational disease” but rather aggravated an asthmatic condition that was pre-existent. The referee next determined that, since the asthma was not one of the occupational diseases specifically mentioned in sections 108(a)-(m) or (oMq) of the Act, it became incumbent upon the claimant to establish his case under the omnibus provision in section 108(n), 77 P.S. § 27.1(n), which accords to any other disease the status of an “occupational disease” if certain factors are proved.³ Observing that one of the requirements under section 108(n) is that such other disease have an incidence in the claimant’s work which is “substantially greater in that industry or occupation than in the general population,” the referee dismissed Pawlosky’s claim petition because no such proof had been offered. It is obvious from the referee’s decision that he rejected the claimant’s assertion that section 301(c)(1) provided a basis for compensation, even though the decision made no express reference to that contention.

The claimant followed with an appeal to the Workmen’s Compensation Appeal Board (“Board”), which affirmed the referee’s decision. The Board reasoned that the claimant sought benefits for an “occupational disease-like injury” and that such was compensable only under section 108(n). The Board therefore concluded that, since he had not satisfied the proof demands of that section, the claimant could not prevail.

Pawlosky filed a petition for review in the Commonwealth Court. That court reversed the Board and entered an order mandating an award of benefits. Pawlosky v. Workmen’s Compensation Appeal Board (Latrobe Brewing Co.), 81 Pa.Cmwlth. 270, 473 A.2d 260 (1984). In its resolution of the case, Commonwealth Court held that the workplace aggravation of a pre-existent disease constituted an “injury” within the meaning of the current version of section 301(c) of the Act, even if the exposure-type harm is not proven to be an occupational disease within the compass of section 108. Based on the evidence and the referee’s findings in the matter, the court further held that the claimant was entitled to benefits by force of section 301(c)(1). Thus, in the view of the Commonwealth Court, the referee and the Board had erred in applying occupational disease standards to the claim.

Latrobe responded to the above decision by petitioning this Court for an allowance of appeal, which we granted. Since in this appeal there is no challenge to any of the referee’s factual findings, or any assertion that constitutional rights have been violated, our scope of review is confined to a determination of whether an error of law was committed. See Workmen’s Compensation Appeal Board v. Bernard S. Pincus Co., 479 Pa. 286, 388 A.2d 659 (1978); McGee v. L.F. Grammes & Sons, Inc., 477 Pa. 143, 383 A.2d 864 (1978); Utter v. Asten-Hill Mfg. Co., 453 Pa. 401, 309 A.2d 583 (1973).

The appellant argues, of course, that the referee and the Board were correct in deciding that claimant Pawlosky had to prove his case pursuant to the omnibus provision in section 108(n) of the Act. To amplify this contention the appellant begins by pointing out that the claimant’s underlying asthmatic condition, though medically classifiable as a disease, is not specifically included in the statutory schedule of “occupational diseases”, and that the condition was not in itself caused by any workplace exposure. The appellant then emphasizes that the claimant’s asthma is an ailment common in the general population and one that can be aggravated by a variety of non-occupational causes. Having armed itself with the above premises, the appellant argues that the claimant’s right to receive workmen’s compensation, for the aggravation of his asthmatic condition by on-job irritants, required proof that the incidence of aggravation was substantially greater in his industry or occupation than in the general population. According to the appellant, it was not enough for Pawlosky to prove that the disabling aggravation was in fact caused by his work environment; he had to go further and show that his work-related exposure to aggravation was of the comparative degree required by section 108(n).

In support of its argument the appellant states that “since 1972 it has been the clear legislative intent to define ‘injury’ in terms of (1) the old pre-1972 concept of ‘accidental injury’, and (2) the occupational disease definitions which had previously only appeared in the Pennsylvania Occupational Disease Act of 1939.” Having fashioned this interpretation of the current Pennsylvania Workmen’s Compensation Act, the appellant concludes that where the harm in question involves a disease the exclusive route to compensation is through the occupational disease provisions of section 108.

As originally enacted in 1915 The Pennsylvania Workmen’s Compensation Act provided benefits only for injury or death resulting from an “accident” in the course of employment. Sections 101, 301(a), 77 P.S. §§ 1, 431 (1915) (amended 1972). The word “injury” was statutorily defined as meaning “only violence to the physical structure of the body, and such disease or infection as naturally results therefrom....” Section 301(c) of the Act, 77 P.S. § 411 (1915) (amended 1972). Although the original Act specifically defined the term “injury,” the statute contained no definition of the word “accident.” Therefore, the task of defining what was an “accident” within the meaning of the Act had to be assumed by the courts; and they proceeded to interpret that word essentially in accordance with its usual, ordinary and popular sense. See Lacey v. Washburn & Williams Co., 309 Pa. 574, 164 A. 724 (1933); McCauley v. Imperial Woolen Co., 261 Pa. 312, 104 A. 617 (1918).

It has been observed that the word “accident” in the original Act was deliberately left free of precise statutory definition to keep the concept flexible and to allow the courts greater latitude for interpretations that would further the basic purposes of the statute. 1 A. BARBIERI, PENNSYLVANIA WORKMEN’S COMPENSATION § 308 at 15. In any event it became clear that, from early in the history of this state’s workmen’s compensation legislation, some concepts central to the recovery of benefits were to be given their legal meaning and scope by the courts. See, e.g., Hinkle v. H.J. Heinz Co., 462 Pa. 111, 337 A.2d 907 (1975); Hamilton v. Procon, Inc., 434 Pa. 90, 252 A.2d 601 (1969); Parks v. Miller Printing Machine Co., 336 Pa. 455, 9 A.2d 742 (1939); Gurski v. Susquehanna Coal Co., 262 Pa.1, 104 A. 801 (1918); Lane v. Horn & Hardart Baking Co., 261 Pa. 329, 104 A. 615 (1918); Dzikowska v. Superior Steel Co., 259 Pa. 578, 103 A. 351 (1918).

Under the original Act, as passed in 1915, there was no provision for disease unless it resulted naturally from an accidental and traumatic injury. Accordingly, the statute did not cover “occupational diseases.” Mauchline v. State Insurance Fund, 279 Pa. 524, 124 A. 168 (1924); McCauley v. Imperial Woolen Co., supra.⁴ Although a 1915 amendment to the Pennsylvania Constitution⁵ had authorized compensation legislation covering occupational diseases, no such compensation law was enacted until 1937,⁶ and that as a supplement to the Act of 1915. That attempt to provide coverage for occupational diseases was replaced in 1939 by The Pennsylvania Occupational Disease Act (“Disease Act”),⁷ which created a distinct and separate system of compensation for certain types of diseases contracted strictly through exposure in the course of employment. The 1939 Disease Act designated thirteen ailments which would be deemed “occupational diseases.” To that list other ailments were later added, as was an omnibus or “catch-all” provision to allow coverage for non-designated diseases if certain conditions are met.

In 1972 The Pennsylvania Workmen’s Compensation Act underwent extensive amendment. For example, in section 101 of the Act, 77 P.S. § 1, the word “accident” was excised as a condition for the statute’s applicability, and the word “injury” substituted. A corresponding change was made in section 301(a), 77 P.S. § 431, thus eliminating “accident” as a requirement for compensation.

As a further matter, section 301(c) was renumbered to contain sections 301(c)(1) and (2), and amended to read as follows:

(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____

The term “injury arising in the course of his employment,” ... shall include all injuries caused by the condition of the premises or by the operation of the employer’s business or affairs thereon____

(2) The terms “injury, ” “personal injury, ” and “injury arising in the course of his employment, ” as used in this act, shall include, unless the context clearly requires otherwise, occupational disease as defined in section 108 of this act____

(Emphasis added.) 77 P.S. § 411 (Supp.1986).

It is important to note that the original statutory definition of “injury,” requiring “violence to the physical structure of the body,” was deleted by the above amendment. In place of the previous definition, the legislature in 1972 provided a concept of “injury” broad enough in its scope to encompass all work-related harm to an employee “regardless of his previous physical condition.” It may now be said, generally, that an employer takes an employee as he comes. Specifically included in the new statutory conception of “injury” is the job-related aggravation, reactivation or acceleration of a pre-existing disease, even if the underlying disease itself was not caused by a work-related injury. Also, by virtue of the 1972 addition of section 301(c)(2), 77 P.S. § 411(2), occupational diseases, as defined in section 108, are included in the concept of “injury” under the Workmen’s Compensation Act.

A careful reading of the 1972 version of section 301(c) will reveal that, with the exception of the occupational diseases incorporated by reference, the word “injury” as there used is not itself actually defined. Section 301(c)(1) merely states that “[t]he terms ‘injury ’ and ‘personal injury,’ as used in this act, shall be construed to mean an injury....” 77 P.S. § 411(1) (emphasis added). This direction does no more than state that an injury is an injury. Although the 1972 amendment effectively categorizes the circumstances under which an injury is compensable, the word “injury” itself is given no express statutory meaning, as it had prior to the 1972 revision. Thus, just as under the original 1915 Act the courts had to give meaning to the undefined term “accident,” see Lacey v. Washburn & Williams Co., supra; McCauley v. Imperial Woolen Co., supra, so must the courts now define the meaning of the term “injury” in section 301(c)(1). And, since the latter term no longer has a technical meaning, it must be interpreted according to its common and approved usage. 1 Pa.C.S. § 1903(a); see Lacey v. Washburn & Williams Co., supra.

In Creighan v. Firemen’s Relief and Pension Fund Board, 397 Pa. 419, 155 A.2d 844 (1959), this Court observed that, “‘in common speech the word “injury,” as applied to personal injury to a human being, includes whatever lesion or change in any part of the system produces harm or pain, or a lessened facility of the natural use of any bodily activity or capability.’ ” Id., 397 Pa. at 425, 155 A.2d at 847 (emphasis added) (quoting Burns’ Case, 218 Mass. 8, 12, 105 N.E. 601, 603 (1914)). Going further, this Court in Creighan went on to state that “ ‘[t]he word “injury,” in ordinary modern usage, is one of very broad designation ’,” and that “ ‘its common and approved usage extends to and includes any hurtful or damaging effect which may be suffered by anyone ’.” 397 Pa. at 425-26, 155 A.2d at 847 (emphasis in original) (quoting State ex rel. McManus v. Board of Trustees of Policemen’s Pension Fund, 138 Wis. 133, 119 N.W. 806 (1909)). It is true that Creighan was about the rights of an allegedly injured person pursuant to a pension statute, and not the Workmen’s Compensation Act. However, the case is greatly significant for our present purposes in that the Court had to give meaning to the word “injury” in the absence of an express statutory definition. Indeed, in Workmen’s Compensation Appeal Board v. Bernard S. Pincus Co., supra, we embraced Creighan’s broad definition of “injury” for the purpose of construing section 301(c)(1) of the Act.

Given the striking and, by now, well-known changes wrought by the 1972 amendments of the Act, it is utterly preposterous for the appellant to argue that the current version of section 301(c) is no more than the pre-1972 concepts of compensable injury supplemented by coverage for occupational diseases. This bizarre argument is no doubt the source of the appellant’s notion that, since the harm suffered by claimant Pawlosky was not brought within any of the occupational disease provisions, it could not constitute an “injury” within the meaning of that word as used in section 301(c)(1). What the appellant fails to recognize is that, as a result of the 1972 amendment of section 301(c), the term “injury” became a greatly broadened concept, of which occupational disease is but one dimension. Section 301(c)(1) makes it clear that, in determining whether an employee has suffered a compensable injury, his previous condition is of no consequence. So too, this section makes it clear that the job-related aggravation of a disease is a category of “injury” for compensation purposes.⁸

Thus, a job-related aggravation of a pre-existing disease is not precluded from being an “injury” under the Act merely because that disease is not an “occupational disease.” The appellant’s argument in this regard assumes that the legislature, after providing in section 301(c)(1) of the Act for a more expansive concept of “injury”, then proceeded to retract the scope of the concept when it included “occupational diseases” by means of section 301(c)(2). A sounder explanation of section 301(c)(2) is that the legislature, by including occupational diseases in the Act’s concept of “injury”, was attempting to create a unified, integrated compensation law for all work-related harm occurring after the effective dates of the 1972 amendments. See 2 A. BARBIERI, supra, § 7.01(2) at 12.⁹

In the instant case the medical evidence showed, and the referee found, that the claimant had become totally disabled by the effect of chemical fumes at his workplace on his pre-existent asthmatic or pulmonary disease. According to the medical evidence from both parties those fumes aggravated or irritated the claimant’s condition and, with each exposure, would produce an adverse physiological reaction called a bronchospasm, during which he would undergo difficulty in breathing. Given the nature of a bronchospasm, each instance in which such an attack was caused by the chemical fumes would constitute an “injury” within the broad definition set forth in Creighan, supra, and adopted in Workmen’s Compensation Appeal Board v. Bernard S. Pincus Co., supra, for purposes of the Act. That is, the claimant’s inhalation of the chemical fumes would bring about an adverse and hurtful change in his system; and such change would cause him to suffer a lessened facility in the natural use of a bodily activity or capability, i.e., breathing. We therefore hold that the adverse effect of the chemical fumes on the claimant’s pre-existent asthmatic condition constituted an “injury” within the meaning of section 301(c)(1) of the Act.

Any claimant for workmen’s compensation benefits has the burden of establishing all the elements necessary to support an award. Halaski v. Hilton Hotel, 487 Pa. 313, 409 A.2d 367 (1979). In that regard, he need only prove two elements: (1) that the injury arose in the course of employment, and (2) that the injury was related to that employment. Krawchuk v. Philadelphia Electric Co., 497 Pa. 115, 439 A.2d 627 (1981); Halaski, supra. The fact that the instant claimant proceeded under section 301(c)(1) of the Act, instead of under section 108, can hardly be said to have gained for him an unlawful evidentiary advantage or lessening of his proof burden. Indeed, under the Act, it is the claimant seeking to recover for an occupational disease who is given a procedural or evidentiary advantage. Once such a claimant establishes that he has contracted an occupational disease and that the disease, at or immediately before ¿he date of disability, was a hazard in his occupation or industry, he then becomes entitled to a non-conclusive presumption that his occupational disease arose out of and in the course of his employment. Section 301(e) of the Act, 77 P.S. § 413. A worker claiming for any other type of injury does not have the benefit of such a presumption. He must bear a nevershifting burden of proving not only that his injury arose in the course of his employment but also that the injury was related to it. Based on the record evidence in the instant case and the referee’s factual findings with respect thereto, we must conclude that the claimant proved all that was necessary to entitle him to an award of workmen’s compensation.

For the reasons set forth herein, we affirm the order of the Commonwealth Court.

McDERMOTT, J., joins in this opinion and files a concurring opinion. ZAPPALA, J., joins in this opinion and in the concurring opinion of McDERMOTT, J. HUTCHINSON, J., files a dissenting opinion.

1 . Act of June 2,1915, P.L. 736, as amended, 77 P.S. § 1 etseq. Section 108, 77 P.S. § 27.1, was added by section 1 of the Act of October 17, 1972, P.L. 930.

2 . 77 P.S. § 411(1).

3 . This provision incorporates into section 108 "[a]ll 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."

4 . In the Mauchline and McCauley cases, the term “occupational disease" was judicially defined as meaning a disease which was the result, not of an accidental and sudden injury, but of gradual development from long-continued exposure to natural dangers incident to one’s employment. See also McIntyre v. E.J. Lavino & Co., 344 Pa. 163, 165-66, 25 A.2d 163, 164 (1942).

5 . Pa. Const, art. 3 § 21 (adopted November 2,1915), renumbered § 18 by amendment of May 16, 1967.

6 . Act of July 2, 1937, P.L. 2714, 77 P.S. § 1101 et seq. (repealed).

7 . Act of June 21, 1939, P.L. 566, as amended 77 P.S. § 1201 et seq.

8 . The phrase “occupational disease-like injury” has frequently appeared in decisions of referees, the Board and in judicial opinions. We must point out that nowhere in the Act is there any such phrase as "occupational disease-like." An ailment is either an occupational disease or it is not. The quoted phrase is meaningless, and it causes confusion.

9 . The validity of this explanation is in no way diminished by the fact that the 1939 statute, The Pennsylvania Occupational Disease Act, remains unrepealed. Obviously, one of the main reasons for not repealing it was to make clear that the 1939 statute was to remain in force with respect to occupational diseases contracted prior to the effective date of the 1972 disease provisions of the Workmen’s Compensation Act. It is worth noting that the diseases covered by the 1939 statute are essentially similar to those provided for in section 108 of the Workmen’s Compensation Act.