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Frog2/15/2002
Argued: December 4, 2001
OPINION NOT REPORTED
The Frog, Switch & Manufacturing Company (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) affirming an order of the Workers' Compensation Judge (WCJ). The WCJ granted a claim petition filed by Hayden Stitt (Decedent) and a fatal claim petition filed by his widow, Lena Stitt (Claimant). We affirm.
Decedent filed a claim petition on October 1, 1996 under the Pennsylvania Workers' Compensation Act (Act), alleging that he had developed cancer of the lung due to an occupational exposure while working for Employer.
Decedent died on October 23, 1996 from adenocarcinoma of the lung. On or about November 8, 1996, Claimant filed a fatal claim petition for benefits. Employer filed an answer to each petition denying the material allegations contained therein. The petitions were consolidated and hearings before a WCJ ensued.
Because adenocarcinoma of the lung is not a specifically enumerated occupational disease under Section 108 of the Act, 77 P.S. ยง27.1, Decedent proceeded under Section 108(n) and was required to prove that (1) he was exposed to the disease by reason of his employment; (2) that the disease was causally related to the employment; and (3) that the incidence of the disease was substantially greater in his industry or occupation than in the general population. See Andres v. Workers' Compensation Appeal Board (USX Corp), 717 A.2d 593 (Pa. Cmwlth. 1998).
In support of the petitions, Claimant testified on her own behalf and presented the testimony of expert medical witness David Keith Parkinson, M.D., and lay witnesses. In opposition to the petitions, Employer presented the testimony of expert medical witness Robert A. Gordon, M.D., and lay witnesses.
Before the WCJ, Claimant testified that her husband first became ill in August of 1996, that he never returned to work, and that he died on October 23, 1996. Claimant testified further that prior to Decedent's illness, he never had respiratory problems and that in the twenty-nine years of marriage, she never knew him to smoke.
The WCJ found Claimant's testimony persuasive and specifically found, based on Claimant's testimony, that Claimant was not a smoker. The WCJ further found, based upon his credibility determinations of the expert witnesses presented, that: (1) the adenocarcinoma of the lung was causally related to Decedent's occupation with Employer; (2) adenocarcinoma of the lung is substantially greater in Decedent's industry and occupation of resin sand foundry man than in the general public; (3) Decedent's adenocarcinoma arose out of and in the course and scope of his employment with Employer; and (4) Decedent died from adenocarcinoma which resulted from his cumulative exposure to smoke, dust and chemicals during the 26 l/2 years of his employment with Employer. (Findings of Facts #49-54.)
Accordingly, the WCJ issued an opinion and order in February 1999 granting both the claim and fatal claim petitions. Employer appealed the WCJ's decision to the Board. Upon review, the Board affirmed and this appeal followed.
Herein, Employer raises the following issues:
(1) Whether the Board erred as a matter of law by failing to properly interpret and apply Section 108(n) of the Act;
(2) Whether the Board erred as a matter of law when it concluded that Decedent's medical witness was competent to testify with respect to whether the foundry at which Decedent worked was a hazard for adenocarcinoma and whether there was a causal connection between Decedent's employment and injury;
(3) Whether the Board
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