Scott v. United States Steel Corp.

Decision Date11 June 1964
Citation203 Pa.Super. 459,201 A.2d 243
PartiesMrs. Theima SCOTT, Widow of William Scott, Deceased, Appellant, v. UNITED STATES STEEL CORPORATION and Commonwealth of Pennsylvania, Appellees.
CourtPennsylvania Superior Court

Samuel J. Goldstein, Pittsburgh, for appellant.

Ira R. Hill, Reed, Smith, Shaw & McClay, G. T. Skinner Pittsburgh, Robert F. Stokes, Clairton, Wilson H. Oldhouser Harrisburg, for appellees.

Before ERVIN, WRIGHT, WOODSIDE, WATKINS MONTGOMERY, and FLOOD, JJ.

WATKINS, Judge.

This is an appeal from an order of the County Court of Allegheny County affirming the denial of benefits by the Workmen's Compensation Board in an occupational disease case. Mrs Thelma Scott, a widow, brought the claim for occupational disease benefits alleging that her husband, William Scott who was an employee of the United States Steel Corporation, died as a result of lung cancer, with metastasis to the skull, as the result of his employment.

The Referee disallowed the claim in that there was no causal connection and the Workmen's Compensation Board affirmed the disallowance of benefits and dismissed the appeal on the ground that she had failed to sustain her burden of proof that her husband's death, through cancer, was caused by his employment. The court below affirmed the Board.

This claim is brought under § 108 of the Pennsylvania Occupational Disease Act of June 21, 1939, P.L. 566, under the amendment of February 28, 1956, P.L. 1095, § 1, 77 P.S. § 1208(n), which reads as follows:

'(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 * * *'

We said in DeMascola v. Lancaster, 200 Pa.Super. 365, 371, 189 A.2d 333 (1963): 'It is apparent that the provisions of § 1401(c) as necessary proof in occupational disease cases are included in this amendment.'

Section 1401(c) reads as follows: '(c) Compensation for the occupational diseases enumerated in this act shall be paid only when such occupational disease is peculiar to the occupation or industry in which the employe was engaged and not common to the general population. * * *' Included, therefore, in the claimant's burden of proof, is that the disease itself is peculiar to the occupation or industry in question and not common to the general population.

Section 301(f) of the Occupational Discase Act, 77 P.S. § 1401(f) reads as follows: '(f) If it be shown that the employe, at or immediately before the date of disability, was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed that the employe's occupational disease arose out of and in the course of his employment but this presumption shall not be conclusive.'

William Scott, the claimant's decedent, was employed as a laborer in the coal tar by-products division of the United States Steel Corporation from 1942 until August 18, 1958, when he became totally disabled as a result of lung cancer and died on April 9, 1959.

Section 108 of the Occupational Disease Act and its amendments, 77 P.S. § 1208, supra, provides inter alia that: 'The term 'occupational disease,' as used in this act, shall mean only the following diseases.' The act then proceeds through subsections (a) to (m), inclusive, and subsection (o) to designate specific diseases as 'occupational diseases'. Subsection (n), supra, was added as a 'catch-all' amendment to take care of diseases, not so designated by the act but which by meeting the burden of proof set forth therein could qualify as 'occupational diseases'.

The burden of proof under § 1208(n), supra, is a heavy one. She must prove that the disease, in this case, lung cancer, is a hazard of his employment and that he was exposed to it; that cancer is a disease which is peculiar to the industry or occupation; and that it is not common to the general public. There was evidence in this case that cancer could have been a hazard in that there were exudations of coal tar distillates and gases which contained cancer producing agents in the form of aromatic hydrocarbons, but there was no evidence that lung cancer is a disease which is peculiar to this industry and that it was not common to the general public. We must take judicial notice of the fact that lung cancer is not peculiar to this industry and that it is common to the general public. We might just as well say that this claimant was exposed, in this industry, as he might very well be, to the common cold and that it is peculiar to the industry and not common to the general public.

At the outset the legislature designated by name the occupational diseases that were covered by the law. In order for diseases of the heart and lungs to be considered as occupational diseases in the cases of paid firemen, the legislature enacted a special amendment making proof that such diseases were peculiar to the industry and not common to the general public unnecessary. DeMascola v. Lancaster, supra. This is not the case under § 1208(n), supra...

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