Document rBN9jEnEa9rB3X1NxgrwoJ0EE

FILE NAME: Baldwin (BALD) DATE: 1946 DOC#: BALD005 DOCUMENT DESCRIPTION: Legal - Bingaman v. Baldwin Opinion fi, i s$ 512 46 ATLANTIC REPORTER, 2d SERIES 150 Pa.Super. 77 Am er ic a n b r id g e co. v. u n e m p l o y M BOARD OF nnsylvania. 6, iryfa M f } ( s ' J /? ~ ' f-d ^ C c a ^ CxU jA jL & a il -. : Unemployment Review that five 1who had there1.10 per hour a to secure suitof law. pany v. Unemployment Compensation Board of Review, Pa.Super., 46 A.2d 510. The board held that in the circumstances prevailing' at the time the offered employ ment was refused five days in which to find suitable work was not a reasonable time. In that conclusion we cannot dis cover an error of law. Decision affirmed. SJO i.i'W/ tf XET NUMBERSYS7IM> upon the claim at Appeal No. o. B-4707. Unemployment "*T Evelyn Theresa Davis, claimant, opposed by the American Bridge Company, employer. From a de cision of the Unemployment Compensation Board of Review allowing the claim, the employer appeals. Decision affirmed. Before BALDRIGE, P. J., and RHODES, HIRT, RENO, DITHRICH, ROSS and ARNOLD, JJ. 159 Pa.Super. 29 BINGAMAN v. BALDWIN LOCOMOTIVE WORKS, Inc., et al. Appeal of OLDT. Superior Court of Pennsylvania. April 12, 194& 1. Workmen's compensation =>53 The Occupational Disease Act should be given the same liberal construction that has been given the Workmen's Compensa tion Act, but, where the requirements of the statute are clear, intention and meaning of the Legislature, as expressed therein, may not be ignored. 77 P.S. 1401(d, g) 1408(a). . P. K. Motheral and Reed, Smith, Shaw & McClay, all of Pittsburgh, for appellant. R. Carlyle Fee, Asst. Sp. Deputy Atty. Gen., Charles R. Davis, Sp. Deputy Atty. Gen., and James H. Duff, Atty. Gen., for appellee. RENO, Judge. In this unemployment compensation case the board found that the claimant had been employed by appellant, American Bridge Company, as a welder at $1.10 per hour from January 26, 1944 to June IS, 1945, when she was laid off because of lack of work. On June 20, 1945, she was offered employment at a filling station at $18 per week which she refused because the salary was too low. For this, the bureau dis allowed the worker's claim for benefits. Upon her appeal, the referee reversed the bureau, and the referee's decision was sus tained by the board upon the employer's ap peal. The appeal raises the same questions de cided this day in American Bridge Corn- 2. Workmen's compensation @=>549 While a claimant may combine periods of exposure to a silica hazard in order to reach the required aggregate, he may not include in the computation periods of em ployment in a different and nonhazardous occupation because he happens to have the same employer for both jobs. 77 P S 1401(d, g). ^ 3. Workmen's compensation @=>549 __ Employment in an occupation having a silica hazard exists only where an employee is subjected to the hazard of exposure to the dust of silicon dioxide. 77 P S 5 1401(d, g). S 4. Workmen's compensation @=>549 Although the Occupational Disease Act gives a claimant the benefit of any and all employment during a period of eight years preceding date of his disability due to silicosis, the aggregate employment for four years during the eight years must be in an occupation having a silica hazard. 77 P.S. 1401(d, g). :r i e s nemployment Compensation iew, Pa.Super., 46 A.2d 510. Id that in the circumstances the time the offered employused five days in which to work was not a reasonable : conclusion we cannot disof law. rmed. / w \ ________ ft EtrnaitMBcTn(u\ 159 Pa.Super. 29 . BALDWIN LOCOMOTIVE IRKS, Inc., et al. ppeal of OLDT. Court of Pennsylvania. ^pril 12, 1946. impensatlon <S=>53 ational Disease Act should me liberal construction that the Workmen's Compensawhere the requirements of lear, intention and meaning ure, as expressed therein, red. 77 P.S. 1401(d, g), mpensatlon <2=549 imant may combine periods a silica hazard in order to -ed aggregate, he may not omputation periods of em-' afferent and nonhazardous ise he happens to have the for both jobs. 77 P.S. npensation <3=549 in an occupation having a its only where an employee he hazard o f exposure to con dioxide. 77 P.S. npensation <3=549 le Occupational Disease ant the benefit o f any and luring a period of eight ate of his disability due to gregate employment for I the eight years must be having a silica hazard. &) BINGAMAN v. BALDWIN LOCOMOTIVE WORKS C ite a s 46 A .2d 512 ra- 513 5. Workmen's compensation <3=1365 years next preceding the date of disability, The mere continuation of a contract of employment does not determine a claim" ant's right to recover under the Occupa tional Disease Act for disability due to silicosis, but proof of the silica hazard is an essential part of claimant's case. 77 P.S. 1401(d, g). 6. Workmen's compensation <^>549 Where during the eight years preced ing employee's death, his employment with defendant in an occupation having a silica hazard did not exceed 3% years, compen sation was not recoverable for death of employee as due to exposure to silica hazard. 77 P.S. 1401(d, g), 1408(a). Appeal No. 11, March term, 1946, from judgment of Court of Common Pleas, Mif flin County, No. 287, May term, 1945; Wil liam W. Uttley, President Judge. Proceeding under the Occupational Dis ease Act by Dallas M. Bingaman, claimant, opposed by Baldwin Locomotive Works, Inc., successor to Standard Steel Works Company, employer, and others, wherein, after the death of claimant, Dorothy M. Bingaman filed a claim petition in her own right and for her dependent minor children. Awards of compensation made in both cases were set aside by the Court of Appeals and, upon the death of Dorothy M. Binga man, appeals were taken by Charles M. Oldt, administrator of estates of Dallas M. Bingaman, deceased, and Dorothy M. Bingaman, deceased. Affirmed. Before BALDRIGE, P. J,, and RHODES, HIRT, RENO, DITHRICH, ROSS, and ARNOLD, JJ. F. Brewster Wickersham, of Metzger & Wickersham, and Huette F. Dowling, all of Harrisburg, and Henry J. Sommer, of Selinsgrove, for appellants. Paul S. Lehman, of Lewistown, for ap pellee. in an occupation navmp- a silica or asbes^. TosZhazaxdLZ-- Dallas M. Bingaman filed a claim peti tion on September 9, 1940, and set forth therein that he became totally disabled on December 8, 1939, as a result of silicosis while in the course of his employment with defendant. The employee died on Decem ber 6, 1940, and his widow, Dorothy M. Bingaman, then filed a claim petition in her own right and for her dependent minor children on January 13, 1941. The referee awarded compensation under both petitions. The Workmen's Compensation Board even tually affirmed the awards and the findings of fact and conclusions of law of the referee. From the board the defendant and the Commonwealth appealed to the Court of Common Pleas of Mifflin County; the exceptions were sustained, the awards were set aside in both cases, and compensation disallowed. Dorothy M. Bingaman having died, suggestion of death was filed. Charles M. Oldt, Administrator of the Estate of Dallas M. Bingaman, deceased, appealed to this court to No. 10, March Term, 1946, and Charles M. Oldt, Administrator of the Estate of Dorothy M. Bingaman, deceased, appealed to No. 11, March Term, 1946, which appeal is now before us. It has been stipulated that the same ques tion is involved in both appeals, and that the decision of this court in No. 11, March Term, 1946, will be controlling in the ap peal to No. 10, March Term, 1946. Deceased had been employed as a chipper in defendant's foundry; and the compen sation authorities found that he had been engaged in an occupation having a silica hazard, and that his total disability and subsequent death were caused solely by silicosis. The pertinent provisions of the Pennsyl vania Occupational Disease Act of June 21, 1939, P.L. 566, are paragraphs (d) and (g) of section 301, 77 P.S. 1401(d) (g), and paragraph (a) of section 308, as amend ed, 77 P.S. 1408(a). RHODES, Judge. The question for determination on this appeal has been stipulated as follows: Did 'Dallas' M Binpaman's e m p lo y m e n t w ith defendant satisfy the statutory renuirement of "an aggregate employment of at. least tour years in rh e C o m m o n w e a lth n f. Pennsylvania, during a period of eight To sustain the awards it is necessary that the proofs and findings establish that deceased had had an aggregate employment of at least four years in this Common wealth, during a period of eight years next .preceding his disability, in an occupation -having a silica hazard, and that defendant jvas the last employer in whose employment deceased was exposed to such hazard. 46 A.2d--33 5 U Pa- 46 ATLANTIC REPORTER, 2d TEBrag Appellant's contention is that deceased's ture, as expressed therein, may not be contract of employment continued with ignored. defendant from May 11, 1934, until Decem ber 8, 1939, a period of five and one-half years. Appellees assert that deceased's employment with defendant, in an occu pation having a silica hazard, during the period of eight years next preceding De cember 8, 1939, the date of his total dis ability, did not exceed three years, six months, and twenty-four days. The referee and the board found that during the period of eight years next preteding December 8, 1939, Dallas M. Bingaman actually worked in defendant's foundry luring the following periods o f time: May 11, 1934, to October 15, 1934; February 4, 935, to June 13, 1935; April 9, 1936, to June 13, 1938; May 1, 1939, to and includ ing December 8, 1939. They also found that deceased worked for defendant in 1923, 1925 to 1928, in 1929, and in 1930; `-hat during these periods he was employed in the capacity of a chipper; that during the eight years preceding' December 8, [2] Had deceased worked for defend ant between the intervals of his employ ment as a chipper in another occupation having no silica hazard, there could be no recovery although he had been employed by defendant for five and one-half years between 1934 and 1939. In Tokash v. Early Foundry Co. et al,, 157 Pa.Super. 467, at page 471, 43 A.2d 553, at page 554, in an opinion by Judge Ross, we held: "While a claimant may combine periods of exposure in order to reach the required aggregate, he may not include in the com putation periods of employment [in] a different and non-hazardous occupation be cause he happens to have the same em ployer for both jobs." During the periods when deceased was not engaged in defendant's plant as a chipper, he was not exposed to any silica hazard. He was not working at all, or he was farming or lumbering for others. 1939, he had no employment other than with defendant with the exception of lum bering and farm work; and that he ac cepted from defendant every call for work. It thus appears that deceased's period of employment in 1934 was five months, four days; in 1935, four months, nine days; in 1936 to 1938, two years, two months, and four days; in 1939, seven months, seven days, or a total of three years,, six months, and twenty-four days. [3] It is significant that in paragraph (a), section 308 of the act, 77 P.S. 1408 (a), the Commonwealth can be held liable for a part of the compensation only where the occupational disease has developed to the point of disablement after an exposure of five or more years. A proviso contains similar language in section 301(g) of the act, 77 P.S. 1401(g). We desire to make it clear that in our opinion employ ment in an occupation having a silica [1] Appellant apparently misconceives the import of section 301(d) of the Oc cupational Disease Act, 77 P.S. 1401(d), and insists that the continuation of a con tract of employment controls this type of case. The board subscribed to this theory and concluded that deceased's employment extended from May 11, 1934, to December 8, 1939, a period of five and one-half years, notwithstanding its finding as to the periods when deceased was employed as a chipper in defendant's foundry. We fully recognize hazard, section 301(d) of the act, 77 P.S. 1401(d), exists only where an employee is subjected to the hazard of exposure to the dust of silicon dioxide. Act of June 21, 1939, P.L. 566, 108(k), 77 P.S. 1208(k); McGarvey v. Butler Consolidated Coal Co. et al., 157 Pa.Super. 353, 356, 43 A.2d 623. See, also, Agostin v. Pittsburgh Steel Foundry Corp. et al., 157 Pa.Super. 322, 43 A.2d 604; Tokash v. Early Foundry Co. et al., supra, 157 Pa.Super. 467, 43 A.2d 553. that the Pennsylvania Occupational Disease [4-6] Section 301(d) of the act, 77 Act of June 21, 1939, P.L. 566, 77 P.S. P.S. 1401(d), gives a claimant the bene 1201 et seq., should be given the same liber fit of any and all employments during a al construction that has been given the period of eight years preceding the date Workmen's Compensation Act. Roschak et ux. v. Vulcan Iron Works, 157 Pa.Super. 227, 235, 42 A.2d 280. But, as the court below in its opinion very well stated, where the requirements of the statute are clear, the intention and meaning of the legisla of his disability. But the aggregate em ployment for four years during the eight years must be in an occupation having a silica hazard. The aggregate employment must carry with it the hazard for the re quired time. The extended periods of 3 : HARTMAN v. STANDARD STEEL WORKS CO. Pa. 515 (ate ae 4i AJd SIS 1 therein, may not be >ed worked for defendatervals of his employ1 in another occupation zard, there could be no he had been employed five and one-half years 1939. In Tokash v. . et al., 157 Pa.Super. 5 A.2d 553, at page 554, Judge Ross, we held: may combine periods :r to reach the required not include in the comf employment [in] a izardous occupation be t1o have the same em- ds when deceased was efendant's plant as a : exposed to any silica t working at all, or he bering for others. ant that in paragraph the act, 77 P.S. 1408 alth can be held liable mpensation only where ease has developed to sent after an exposure s. A proviso contains section 301(g) of the 'l(g). We desire to a our opinion employition having a silica d) of the act, 77 P.S. ly where an employee lazard of exposure to dioxide. Act of June 108(k), 77 P.S. v. Butler Consolidated Pa.Super. 353, 356, 43 Agostin v. Pittsburgh et al., 157 Pa.Super. <ash v. Early Foundry 57 Pa.Super. 467, 43 .(d) of the act, 77 a claimant the benems pplroeycmedeinntgs dthuerindgatae ! it the aggregate em:ars during the eight occupation having a ggregate employment ie hazard for the re extended periods of nonemployment or employment elsewhere involved no such hazard on the part of deceased. It is not, as appellant contends, the mere continuation of a contract of employment th at. determines a claimant's right to recover under the act. More is required than the continued relationship of employer and employee. Proof of the silica hazard is an essential part of a claimant's case. Hurtuk v. H. C. Frick Coke Co., 157 Pa.Super. 317, 321, 43 A.2d 559. The application of appellant's theory would require substantial change in the statutory law. We think deceased's noncompliance with the act is clear, and precludes recovery by appellant. On the findings of fact an award could not be sustained. Judgment for defendants affirmed. 159 Pa.Super. 122 HARTMAN V. STANDARD STEEL WORKS CO. Superior Court of Pennsylvania. April 12, 1946. Workmen's compensation <3=549 Where claimant, seeking compensation for disability due to silica hazard, had worked for same employer off and on dur ing a period of eight years, but during that time claimant also worked for others where he was not subject to a silica hazard, and the period of his employment when he was subject to such hazard was less than four years, compensation was properly disal lowed 77 P.S. 1201 et seq. Appeal No. 2, March term, 1945, from order of Court of Common Pleas, Mifflin County, No. 45, October Term, 1943; Wil liam W. Uttley, President Judge. Proceeding under the Occupational Disease Act by Grover H. Hartman, claim ant, opposed by Standard Steel Works Company, employer. From a judgment af firming the decision of the Workmen's Compensation Board disallowing compensa tion, claimant appeals. Affirmed. Before BALDRIGE, P. J., and RHODES, HIRT, RENO, DITHRICH, ROSS and ARNOLD, JJ. F. Brewster Wickersham, of Metzger & Wickersham, all of Harrisburg, and Donold M. Johnson, of Middleburg, for ap pellant. . Paul S. Lehman, of Lewistown, for ap pellee. RHODES, Judge. This is an appeal by claimant under the Pennsylvania Occupational Disease Act of June 21, 1939, P.L. 566, 77 P.S. 1201 et seq. The claim for compensation was dis allowed by the referee. The Workmen's Compensation Board affirmed the referee's findings of fact, conclusions of law, and order of disallowance. The court below affirmed the board and dismissed claimant's appeal. The referee found that claimant was to tally disabled on March 21, 1942, as the result of silicosis contracted while in the employ of defendant Claimant had been employed by defendant at various times, and the periods in the eight years next preceding his disability on March 21, 1942, were as follows: March 21, 1934, to Oc tober 22, 1934; July 15, 1937, to June 14, 1938; November 14, 1939, to March 21, 1942. Claimant's period of employment with defendant in 1934 was seven months and one day; in 1937 and 1938, ten months and twenty-nine days; in 1939 to 1942, two years, four months, and seven days, or a total of three years, ten months, and seven days. Claimant was employed by the Hill Brick Company, Beavertown, Snyder County, Pa., as follows: May 1, 1936, to November 12, 1936; January 19, 1937, to January 30, 1937; March 4, 1937, to July 15, 1937; April 18, 1939, to November 13, 1939. Claimant's employment with the Hill Brick Company did not subject him to a silica hazard. Claimant's employment as a chip per by defendant did involve such hazard. The referee disallowed compensation for the reason that claimant did not have an aggregate employment for four years in the Commonwealth of Pennsylvania during a period of eight years next preceding the date of disability in an occupation having a silica hazard. The aggregate employ ment of claimant with defendant was three years, ten months, and seven days, during