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BETHLEHEM MINES CORPORATION v. WORKMEN'S COMPENSATION APPEAL BOARD (FORTE) (06/11/86)

decided: June 11, 1986.

BETHLEHEM MINES CORPORATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (FORTE), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Josephine Forte w/o Nicholas M. v. Bethlehem Mines Corporation, No. A-87512.

COUNSEL

Stephen I. Richman, with him, William F. Henkel, Stephen I. Richman & Partners, for petitioner.

C. Jerome Moschetta, for respondent, Josephine Forte.

President Judge Crumlish, Jr., and Judges Rogers and Barry, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 98 Pa. Commw. Page 99]

This appeal results from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a decision of a referee awarding benefits on a fatal claim petition filed by the claimant, Josephine Forte, widow of the deceased, Nicholas Forte.

The deceased was employed by Bethlehem Mines Corporation (employer) and its predecessors from 1936 until March 28, 1978. For the last twenty-eight years, the deceased had worked as a mine electrician. His primary responsibility was to repair and maintain various electric motors used by the employer. The motors for which the deceased was responsible contained asbestos for insulation purposes.

In March of 1978, the deceased was diagnosed as having carcinoma of the colon. Despite various treatments, he died on December 15, 1978, the carcinoma being the cause of death. On November 24, 1981, the claimant filed a fatal claim petition, alleging that the carcinoma had been caused by the deceased's exposure to asbestos in the workplace. Numerous hearings were held, including the taking of depositions from a number of doctors. On December 24, 1983, the referee awarded benefits, finding as a fact that the deceased had been exposed to significant levels of asbestos in the workplace and that this exposure was the cause of his carcinoma. The Board affirmed and this appeal followed.

When a claim petition is filed, the claimant bears the burden of proving that he or she is entitled to compensation. Halaski v. Hilton Hotel, 487 Pa. 313, 409 A.2d 367

[ 98 Pa. Commw. Page 100]

(1979). Where the party with the burden of proof prevails before the fact-finder and the Board has taken no additional evidence, our review is limited to determining whether necessary factual findings are supported by substantial evidence, an error of law was committed or constitutional rights were violated. McCrory Stores v. Workmen's Compensation Appeal Board, 80 Pa. Commonwealth Ct. 76, 470 A.2d 1124 (1984).

The employer raises a number of allegations of error. It first argues that the referee's factual findings described above are not supported by substantial evidence because (a) the evidence presented showed that the levels of asbestos present in the workplace were insignificant, (b) the evidence concerning post mortem examinations of the deceased's internal organs showed that no asbestos stigmata were present and (c) the "consensus" of medical experts was that the causal connection between asbestos and carcinoma of the colon was not established. We will deal with these questions seriatim.

At the hearings before the referee, two of the deceased's co-workers testified. Each described the deceased's job which included the dismantling of electric motors so that repairs could be made. An essential part of the dismantling was the thorough cleaning of the internal parts of the motor. Because asbestos was used as an insulating agent in these motors, the deceased was required first to scrape out the asbestos. Once the scraping was finished, a compressed air hose was used to blow out any particulates, including those made of asbestos. Both witnesses testified that the ...


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