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BAMBRICK v. ASTEN HILL MFG. CO. (05/25/72)

decided: May 25, 1972.

BAMBRICK
v.
ASTEN HILL MFG. CO., ET AL. UTTER V. ASTEN HILL MFG. CO., ET AL.



Appeals from the Orders of the Court of Common Pleas of Philadelphia County in cases of Alice Bambrick, Widow of Cecil Bambrick, Deceased Claimant, v. Asten Hill Mfg. Co. & Pennsylvania Manufacturers' Association Insurance Co., Insurance Carrier, & Commonwealth of Pennsylvania, Co-Defendant; Robert T. Utter, Claimant, v. Asten Hill Mfg. Co. & Commonwealth of Pennsylvania & State Workmen's Insurance Fund; and Margaret R. Utter, Widow of Robert Utter, Deceased v. Asten Hill Mfg. Co. & Commonwealth of Pennsylvania & State Workmen's Insurance Fund, Nos. 3260 August Term 1969, 3550 August Term 1969, and 3551 August Term 1969.

COUNSEL

John F. McElvenny, with him Frederick W. Anton, III, for appellant, Asten Hill Mfg. Co. and Pa. Manufacturers' Assoc. Ins. Co.

Joyce Ullman, Special Assistant Attorney General, for appellant, Commonwealth.

Stephen E. Levin, Special Assistant Attorney General, for appellant, Insurance Fund.

Joseph V. Furlong, Jr., with him Tabas, Smith & Furlong, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Concurring Opinion by Judge Blatt. Dissenting Opinion by Judge Kramer. Judge Crumlish, Jr. joins in this dissenting opinion.

Author: Wilkinson

[ 5 Pa. Commw. Page 666]

We are here concerned with three appeals which arise as a result of claims brought pursuant to Section 310(e) of the Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, No. 264, as amended, 77 P.S. ยง 1401(e) which provides that ". . . Compensation shall be payable . . . for total disability or death caused by . . . asbestosis. . . ."

The three claimants were successful before the referee and were awarded compensation. The defendants, Asten Hill Manufacturing Company, and its insurance carriers, State Workmen's Insurance Fund and the Pennsylvania Manufacturers' Association Insurance Company, and the Commonwealth, Department of Labor and Industry, Occupational Disease Division, appealed to the Workmen's Compensation Board (Board) which affirmed the decision of the referee. Appeals were taken to the Court of Common Pleas of Philadelphia County which affirmed the awards by the Board. These appeals followed.

Our scope of review where the Board has made awards in favor of the claimants is to determine whether or not there is substantial evidence to support the findings of the Board, giving to the claimant, who has the award, the benefit of the most favorable inferences deducible from the testimony. DeMascola v. Lancaster, 200 Pa. Superior Ct. 365, 189 A.2d 333 (1963).

While the three claims are treated separately herein, the occupational disease, asbestosis, the claimants' medical expert, and the employer, Asten Hill Manufacturing Company, are common to all claims.

[ 5 Pa. Commw. Page 667]

In response to a hypothetical question based upon the records, x-ray films and the autopsy report, claimant's medical expert never having seen or examined the deceased replied that in his opinion, the deceased had asbestosis. When he was asked if he had an opinion as to whether the death was causally related to asbestosis, he replied: "A. In my opinion there can be very little doubt that Mr. Utter's death was due to lung cancer causally related to his asbestos exposure." (Emphasis added)

The difference between the question asked and the response elicited is determinative of this appeal. Asbestos is a collective term used to describe several different varieties of magnesium silicates, each of which has its unique chemical and physical properties, but all of which share in common the unusual quality of being minerals which occur naturally in fibrous form. 5 Gordy-Gray, Attorneys' Textbook of Medicine, para. 205C.11 (3d. Ed. 1970). Asbestosis is a clearly definable medical term used to describe a disease. Asbestosis is a pneumoconiosis resulting from the inhalation of asbestos fiber dust (hydrated magnesium silicate in fibrous form). It is characterized by a diffuse pulmonary alveolar fibrosis, and the presence of 'asbestos bodies'." 5 Gordy-Gray, Attorneys' Textbook of Medicine, para. 205C.01 (3d. Ed. 1970). We would do harm to the reputation of claimant's medical expert to say that he meant asbestosis when he said asbestos exposure, as well as exceed our judicial prerogative. The General Assembly has limited recovery to death caused by asbestosis, not asbestos exposure. There is insufficient evidence upon which to base a finding of death caused by asbestosis.

Claim of Alice Bambrick, Widow of Cecil Bambrick

The decedent, Cecil Bambrick, was employed by Asten Hill from September 5, ...


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