Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Acie L. Phillips v. Westinghouse Electric Corp., No. A-85268.
Robert W. Murdoch, Jones, Gregg, Creehan & Gerace, for petitioner.
Anthony J. Kovach, for respondent, Acie L. Phillips.
Judges Craig and MacPhail, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge MacPhail concurs in result only.
Westinghouse Electric Corporation (Westinghouse) petitions for review of an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award for benefits to Acie L. Phillips (claimant). Disability was alleged to be due to the occupational
disease of asbestosis resulting from the claimant's exposure to an asbestos hazard during his occupation as a millwright.
Westinghouse first contends that the Board erred in affirming the referee's determination that the claimant fulfilled*fn1 the statutory requirements that an asbestosis claimant demonstrate an aggregate employment of at least two years during the ten year period preceding the date of disability as required by Section 301(d) of The Pennsylvania Workmen's Compensation Act (Act).*fn2 Although conceding that the aggregate employment requirement of Section 301(d) may be satisfied by employment exposure of a cumulative nature,*fn3 Westinghouse asserts that the claimant was exposed to asbestos only when he worked for Westinghouse or Union Boiler Company (Union) and argues that his aggregate exposure to asbestos may be computed only with reference to the times when he was so employed, a period totaling only fourteen months. We note, however, that the express language of Section 301(d) requires a claimant to prove nothing more than employment for a stated number of years in an occupation having such a hazard. And, as the referee here found, the claimant was employed as a millwright in Pennsylvania from 1945 through 1975 and, during all of the time that he spent
in that employment,*fn4 he was exposed to an asbestos hazard. Our review of the claimant's testimony and of the deposition testimony of his medical witness, Dr. Walker, reveals substantial evidence, fully supporting these findings. We, therefore, discern no error on the part of the compensation authorities in concluding that the test of Section 301(d) was met.
Westinghouse next contends that the claimant is not entitled to the rebuttable presumption created by Section 301(e) of the Act,*fn5 that a claimant's disease arose out of and during the course of his employment*fn6 if, "at or immediately before the date of disability," he was employed in any occupation in which such an occupational disease is a hazard. Because the claimant's last employment as a millwriight ended December 30, 1975, more than two and one-half years prior to his date of disability, August 22, 1978, Westinghouse argues that he was not employed in a hazardous occupation "at or immediately before" the date of his disability, as required by Section 301(e). We disagree, however, with this proffered ...