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WESTINGHOUSE ELECTRIC CORPORATION v. WORKMEN'S COMPENSATION APPEAL BOARD (PHILLIPS) (03/19/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 19, 1986.

WESTINGHOUSE ELECTRIC CORPORATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (PHILLIPS), RESPONDENTS

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.

COUNSEL

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.

Author: Blatt

[ 96 Pa. Commw. Page 46]

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

[ 96 Pa. Commw. Page 47]

    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

[ 96 Pa. Commw. Page 48]

    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 interpretation of Section 301(e), which presumes the quoted statutory language to have a narrowly defined temporal meaning. Westinghouse provides no authority for this interpretation, and we believe

[ 96 Pa. Commw. Page 49]

    that such a construction is contrary to the intent of the Act. The remedial nature and humanitarian objectives of the Act, which require that its provisions be literally construed, Krawchuk v. Philadelphia Electric Company, 497 Pa. 115, 439 A.2d 627 (1981), in conjunction with the insidious nature of the affliction involved in this case, require that we reject the interpretation Westinghouse advances. The language in question must be interpreted as requiring that a claimant have no intervening employment outside of the hazardous occupation or industry between the time of last exposure and the date of disability, and the facts here, which are supported by substantial record evidence, clearly give rise to the presumption that the claimant's asbestosis arose out of and in the course of his employment as a millwright.

Assuming arguendo, however, that this proffered interpretation of Section 301(e) is correct, we still believe that we would be required to affirm the legal conclusion that the claimant's disease arose out of and during the course of his millwright employment. In Cuppett v. Sheesley Supply Company, 30 Pa. Commonwealth Ct. 584, 374 A.2d 757 (1977), we held that a claimant who directly established that the particular conditions under which he labored exposed him to a hazard did not need to rely on Section 301(f) of The Pennsylvania Occupational Disease Act,*fn7 which establishes a presumption identical to that created by Section 301(e) of the Act. Such reasoning applies equally as well here, for our review of the findings of fact and of the record in this case convinces us that this claimant likewise does not have to rely on the Section 301(e) presumption. He directly established, and the referee so found, that he was exposed to the asbestos hazard at his particular

[ 96 Pa. Commw. Page 50]

    places of employment as millwright. Consequently, we will affirm the Board's conclusion that the claimant has satisfied his burden of proof.*fn8

Finally, we cannot agree with the contention that the referee's acceptance of Dr. Walker's testimony as credible over that of its own medical witness constitutes a capricious disregard of competent testimony. Our examination of the record reveals Dr. Walker's testimony to be competent. Beyond that determination we cannot inquire, because all questions of credibility and weight to be given to the evidence are for the factfinder. Borkowski v. Workmen's Compensation Appeal Board (J. F. Kennedy Medical Center), 74 Pa. Commonwealth Ct. 310, 459 A.2d 1336 (1983) and Campbell Company v. Workmen's Compensation Appeal Board (Kerr), 74 Pa. Commonwealth Ct. 305, 459 A.2d 904 (1983).

Accordingly, we will affirm the order of the Board.

Order

And Now, this 19th day of March, 1986, the order of the Workmen's Compensation Appeal Board in the above-captioned matter is affirmed.

Judge MacPhail concurs in result only.

Disposition

Affirmed.


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