Appeal from the Order of the Workmen's Compensation Appeal Board in the case of John Marcucci, Deceased, Olga, Widow v. B.P. Oil Company, No. A-84915.
Robert W. Maher, Dyer, Maher & Costigan, for petitioner.
Charles S. Katz, Jr., Swartz, Campbell & Detweiler, for respondent, B.P. Oil Company.
Judges Rogers and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.
Before this Court is the appeal of Claimant, Olga Marcucci, widow of John Marcucci, deceased employee of B.P. Oil Corporation. This appeal is from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's disallowance of Claimant's petition filed under Section 301(c)(2) of The Pennsylvania Workmen's Compensation Act*fn1 (Act) for decedent's mesothelioma cancer death from asbestos exposure as provided in Section 108(1)*fn2 of the Act.
The sole issue before us here is whether the decedent's death on January 31, 1975, from metastatic
mesothelioma, admittedly an asbestos related malignancy, after 30 years of asbestos exposure until July 7, 1974, his last date of employment in the hazard, is compensable under The Pennsylvania Workmen's Compensation Act where the medical testimony attributes the onset of the cancer to a date prior to June 30, 1973; and the medical witnesses are unable to specify that any influence on the death is attributable to the exposure during the period June 30, 1973 and July 7, 1974.*fn3 The portion of Section 301(c)(2) under interpretation here reads:
The provisions of this paragraph (2) shall apply only with respect to the disability or death of an employe which results in whole or in part from the employe's exposure to the hazard of occupational disease after June 30, 1973 in employment covered by The Pennsylvania Workmen's Compensation Act.
Claimant filed under the Act but also under the Occupational Disease Act.*fn4 Upon appeal from disallowances under both acts, the Board remanded to have Claimant elect under which act she would proceed. On the remand, upon her election to proceed under The Pennsylvania Workmen's Compensation Act, the referee again disallowed benefits with no additions to the record. The ensuing appeal to the Board resulted in the Board's decision to vacate the key finding of the referee and again remand for the appointment and testimony of an impartial physician. The vacated finding, No. 8, reads:
8. The Referee accepts the testimony of Claimant's physician, J. Frederick Laucius, M.D., that Claimant's carcinogenic 'hit' had occurred prior to January 31, 1971. Any exposure which Claimant may have had to asebstos [sic] hazard after the time of the carcinogenic 'hit' had no effect on the development of his metastic [sic] mesothelioma which would have progressed to the point of death on January 31, 1975 regardless of any further exposure to asbestos hazard.
The Board's comments in its opinion dated October 9, 1980, include the following:
It can be seen from the aforesaid examination of the testimony of the sole physician testifying, that the finding of the referee in finding of fact # 8, concerning the 'hit' is not based upon the record, . . . It is doubted whether a referee, in an occupational disease matter, is authorized to do, what he has done in this case, apply a basic compensation concept, such as a 'hit', or fixed injury in the occupational disease process, to an occupational disease matter. The aforesaid act in
Section 311, where it speaks about notice equates 'injury' in cases of occupational disease as meaning disability resulting from occupational disease. Decedent, because he worked until July 7, 1974, displayed no disability for workmen's compensation purposes. Jones & Laughlin Steel Corp. vs. Workmen's Compensation Appeal Board, 393 A.2d 1079 (Cmwlth. C., 1978). Significantly, also, Section 301(c)(2) of the aforesaid act which defines 'injury' as applying with respect to disability or death of an ...