Appeal from the Order of the Workmen's Compensation Appeal Board in cases of Joseph F. McGovern, Deceased, Clare A. McGovern, Widow v. Asbestos Insulating Co., Inc., and Pacor, Inc., and McDowell Insulation Company, and Eastern Industrial Insulation Co., and Robert H. Tarr Company, and Owens Corning Fiberglass, and Keene Insulation Contracting Company, Keene Corp. Insulation & Contracting Div., and A.C. & S., Inc., and Quaker Insulation Company, and Asbestos Workers Fund, Subrogation Fund, and Universal Insulating Co., and Keene Insulating Company, and Friday Insulation Company, and Commonwealth of Pennsylvania, No. A-80913.
Earl T. Britt, with him, Wayne A. Schaible, Duane, Morris & Heckscher, for petitioners.
George W. Berkelbach, III, with him, Vatche Kaloustain, for respondents.
Judge Rogers, Williams, Jr., and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.
This is Asbestos Insulating Company's (Asbestos) appeal from an order of the Workmen's Compensation Appeal Board, affirming a referee's decision, and placing on Asbestos and its insurance carrier liability pursuant to Section 301(c)(2) of the Pennsylvania Workmen's Compensation Act (Act)*fn1 for the disability and death of Joseph F. McGovern.
The facts as found by the referee on the basis of evidence adduced during four hearings between September, 1976 and March, 1978 are largely uncontested on the occasion of this appeal. Mr. McGovern, at the time of the filing of his claim petition, was a sixty-six year-old former pipe coverer and insulator who, as an employee of eleven corporate concerns including Asbestos for various periods between 1948 and 1974 and, since 1953, as a member of Local 14 of the Heat and Frost Insulators Union, engaged in the application of various insulation materials to pipes, conduits, vents and similar utilities. The materials with which Mr. McGovern regularly worked included asbestos in the form of a cement mixed at the job site and denominated variously, by those familiar with the material, as "7M" or "Blue Mud." Mr. McGovern used this Blue Mud for some twenty-five years including those periods of employment with Asbestos. The procedure performed on numerous occasions by Mr. McGovern necessary to accomplish the mixing of Blue Mud also necessitated the inhalation of asbestos particles and fibers. On November 14, 1975 Mr. McGovern became totally disabled as a result of asbestosis and malignant mesothelioma; a cancer of the membrane which invests the lungs -- conditions frequently associated with exposure to airborne asbestos and, in the uncontradicted opinion of the claimant's expert medical witness,
caused in Mr. McGovern's case by the hazards of his employment as a pipe insulator. Mr. McGovern died of these conditions complicated by bronchial pneumonia on November 13, 1976, during the pendency of these proceedings.
Asbestos confines its appeal to two narrow issues. Noting that occupational diseases are compensable under the Act "only with respect to the disability or death of an employee which results in whole or in part from the employee's exposure to the hazard of occupational disease after June 30, 1973 . . . ," Section 301(c)(2) of the Act, 77 P.S. § 411(2), Asbestos argues that the referee's necessary factual findings of exposure to an asbestos hazard by Mr. McGovern after June 30, 1973 and of a causal relationship between that exposure and the claimant's disability and death are not supported by substantial evidence. The pivotal findings on the issue of exposure to asbestos after June 30, 1973 are as follows:
11. Claimant was employed by Defendant, Asbestos Insulating Company, Inc., during the months of July, August and September of 1973 and worked 21 hours during July, 101 hours during August and 48 hours during September. Most of this time was spent at the plant of Merck, Sharp and Dohme in West Point, Pennsylvania.
12. Claimant's work at the Merck, Sharp and Dohme plant consisted primarily of doing "patch work" which can be described as "trimming the job" (neatly cutting away old insulation in order to make a new application) and applying new insulating materials and cements to piping and flanges which needed repair or had been damaged.
13. The cement used by the Claimant while doing his "patch work" at Merck, Sharp and
Dohme in July, August and September of 1973 was 7M asbestos mud. . . .
15. While performing "patch work," claimant would beat the old insulation materials while trimming the job and would breathe asbestos when emptying blue mud from the bag into the mixing box.
16. Claimant, Joseph F. McGovern, was exposed to the hazard of asbestos while working at the plant of Merck, Sharp and Dohme at West Point, Pa., for the Defendant, Asbestos Insulating Company, Inc., during the period between July 1973 and September 1973.
Asbestos contends that findings number 13 and 16 reproduced above and having to do with the presence at the Merck, Sharpe and Dohme job site of 7M or Blue Mud are not supported by substantial evidence. The claimant testified on direct examination concerning this point during the hearing conducted on September 2, 1976, as follows:
Q: Can you recall specifically what your assignment was during July of 1973 at Merck, Sharp & Dohme?
A: Yes, I was doing patch work.
Q: What sort of materials were you using?
A: Magnesia. I say magnesia, but I shouldn't say that. There was a chance that I could have been using magnesia. This was a sectional covering. I am sure that I was using, in all likelihood, 7M Asbestos mud.
Mr. Britt: [counsel for Asbestos]: I am going to object to that, sir, and move to strike. I don't think there has ...