McGarvey v. Butler Consolidated Coal Company
| Decision Date | 19 July 1945 |
| Parties | McGarvey v. Butler Consolidated Coal Company et al., Appellants |
| Court | Pennsylvania Superior Court |
Argued April 26, 1945.
Appeal, No. 150, April T., 1945, from judgment of C. C Allegheny Co., 1944, No. A 307, in case of William B McGarvey v. Butler Consolidated Coal Company et al.
Appeal by defendants, employer and insurance carrier, from award for occupational disease.
Appeal dismissed and judgment entered for claimant, before McKim, P J., Harkins and Gunther, JJ., opinion by McKim, P. J. Defendants appealed.
Karl E. Weise, with him Hirsch & Shumaker, for appellants.
Samuel Krimsly, for appellee.
Frank McC. Painter, with him William A. Challener, Jr. and Challener & Challener, for amicus curiae.
OPINION
The question in this workmen's compensation case is whether the record contains sufficient competent evidence to support the referee's findings, affirmed by the board, that claimant is totally disabled solely as a result of silicosis contracted in defendant's bituminous coal mine, and whether the findings sustain the conclusions of law and the award to claimant under the Pennsylvania Occupational Disease Act of June 21, 1939, P. L. 566, 77 PS §§ 1201 et seq. The Commonwealth, with the employer and insurance carrier, appealed from the decision of the referee to the board, but it did not join them in the appeal to the court below which affirmed the award. The case is here upon appeals by the employer and the carrier.
Claimant testified that he had worked in coal mines in Pennsylvania for over thirty years, during the last twelve of which he was employed by defendant, first as a cutter and, for the last two years of his employment, as a loader. While working as a cutter, claimant's duties required him to operate a machine which removed veins of clay from beneath seams of soft coal, and the operation of the machine generated clouds of white clay dust which at times became so intense as to require claimant to cease work and leave the chamber until the dust in the air had settled. The cutting machine used by claimant had no sprinkling device to reduce the quantities of dust created, and he was not supplied with a mask to filter the air breathed by him. During the period of time claimant was engaged in loading coal, he was in the chambers when cutting was being carried on, or in close proximity thereto, and was subject to the dust hazards of a cutter. Claimant was forced to stop work on October 3, 1940, because of shortness of breath, a condition which he had noticed about a year previously and which had steadily progressed until he could no longer continue his employment. Both sides agree that he has since been totally and permanently disabled.
Dr. E. L. Mortimer, a general practitioner, testified that he had examined claimant on October 11, 1940, and had made a diagnosis of chronic bronchitis, emphysema and asthma, and because he could find no allergic basis for the asthma he concluded that claimant's occupation had a great deal to do with that condition and ordered that x-ray examinations be made.
Dr. R. G. Pett, a radiologist, testified he had taken x-ray films of claimant's chest and that they revealed extensive fibrosis of the lungs. The witness was of the belief that claimant was suffering from chronic respiratory lesions such as would occur with silicosis, but he could not make a diagnosis of that disease on the basis of his x-ray findings alone.
A specialist in internal medicine, and particularly diseases of the chest, Dr. Edward Lebovitz, testified that x-ray films taken by him showed the presence of coarse markings and nodules in claimant's lungs, and he expressed the opinion, based on the x-rays, a physical examination, and an occupational history, that claimant was totally disabled as a result of silicosis contracted in his employment. Dr. Lebovitz stated he could not prove that claimant had tuberculosis or that any emphysema was present, and he testified that while there was some associated bronchitis, the silicosis was serious enough to be independently disabling.
Dr. Paul G. Bovard, a diagnostic roentgenologist called by defendant, testified that in his opinion, based upon a fluoroscopic and an x-ray examination, claimant displayed pulmonary fibrosis, or toughening of the lung tissue, the cause of which he could not isolate, but which, he said, could be attributable to silicosis if claimant had been exposed to silica dust at his occupation.
Defendant's other witness, Dr. A. H. Colwell, an internal medicine specialist who had examined claimant thoroughly, gave as his diagnosis that claimant was disabled from extreme pulmonary emphysema, silicosis, and adhesive pleurisy of the right diaphragm. This witness, although uncertain, believed the emphysema to be the dominant cause of disability and silicosis to be relatively unimportant, and he thought the emphysema to be the result of hard physical labor rather than a concomitant of the silicotic degeneration of claimant's lungs. Dr. Colwell was...
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