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decided: April 26, 1989.


Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Joseph F. Maher v. B.P. Oil Corporation, No. A-89011.


Robert W. Maher, Dyer, Maher & Costigan, for petitioner.

Charles S. Katz, Jr., Swartz, Campbell & Detweiler, for respondents.

President Judge Crumlish, Jr., and Judges Craig, Doyle, Barry, Palladino, McGinley and Smith. Opinion by Judge Craig. Dissenting Opinion by Judge Doyle.

Author: Craig

[ 125 Pa. Commw. Page 412]

Claimant Joseph F. Maher appeals from a decision of the Workmen's Compensation Appeal Board that affirmed a referee's decision disallowing his petition for benefits filed under section 302(c)(2) of The Pennsylvania Workmen's Compensation Act (Act),*fn1 for disability resulting from asbestosis caused by his exposure to asbestos while he was employed by B.P. Oil Corporation.

The central issue in the case is whether the claimant's proof of exposure to asbestos after June 30, 1973, coupled with his medical evidence relating to the cause of his

[ 125 Pa. Commw. Page 413]

    disability, was sufficient as a matter of law to meet the requirement of section 301(c)(2) that the disability result in whole or in part from exposure after that date, where the referee found as a fact, based on the testimony of the employer's medical witness, that the occupational disease was caused by exposure before that date.*fn2

The facts found by the referee that are not in dispute are that the claimant worked as an insulator at the Marcus Hook Refinery from 1940 to September 30, 1978, when he retired, and, in the course of his employment, he was exposed to asbestos hazard. By 1970 only non-asbestos materials were used when new insulation was installed; however, old asbestos-containing materials still had to be removed as part of the normal duties of insulators. By February 1973 the employer had implemented safety measures to protect the workers from asbestos, namely, requiring the wearing of masks and coveralls when working with asbestos.

In late 1972 the plant physician initiated a program of examining each asbestos handler to see if he were suffering any ill effects from exposure to asbestos. Pursuant to this program, a board certified pulmonary specialist engaged by the employer first examined the claimant on January 3, 1973, and diagnosed severe extensive pleural disease due to asbestos exposure. The specialist recommended that the claimant continue working because he was not disabled. On or about March 6, 1973, the employer gave the claimant an order not to participate in the removal of old insulation and to avoid all contact with

[ 125 Pa. Commw. Page 414]

    asbestos dust; the claimant was to police his own assignments and call any incorrect assignment to the attention of his supervisor.

The specialist continued to monitor the claimant's condition every six months from May 2, 1973, through May 9, 1978. On September 17, 1981, the specialist examined the claimant for the last time, and at that point he first diagnosed asbestosis. There had been an increase in the claimant's disability between May, 1978, and September, 1981. At that time the specialist thought that the claimant was disabled from returning to his work as an insulator, although he did not think the claimant was disabled from sedentary work.

Although the referee made no finding relating to an earlier claim, the employer has not denied the claimant's statement in his claim petition in these proceedings to the effect that he filed an earlier claim petition in August of 1976. The claimant's brief elaborates by stating that, by agreement of counsel, the similar claim of a co-worker was deemed to be a test case with regard to certain issues. After the other case was finally determined in early 1980, the claimant withdrew his original claim and filed the claim that is the subject of the present proceedings on April 7, 1980.

The claimant contends that the referee applied an erroneous legal standard in determining the claimant's burden of proof in his claim for disability benefits on the basis of occupational disease due to asbestos exposure.

The portion of section 301(c)(2) of the Act relating to the burden of proof in an occupational disease case provides:

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

[ 125 Pa. Commw. Page 415]

    disease after June 30, 1973 in employment covered by The Pennsylvania Workmen's Compensation Act.

The referee's crucial Finding of Fact and Conclusion of Law on this point were as follows:

13. By the time that Dr. Rudnitzky first examined Claimant prior to June 30, 1973 the damage to claimant's lungs as a result of exposure to asbestos hazard already had been done. The development of Claimant's disability thereafter was not due to Claimant's exposure to asbestos hazard after June 30, 1973. There was no causal relationship between Claimant's disability which existed as of September 17, 1981 and his exposure to asbestos hazard on or after July 1, 1973 if indeed he was exposed to asbestos hazard. Asbestosis ha[s] a latency period of twenty years or so between the relevant exposure and the manifestation of the disease as a diagnosable condition causing disability.

Finding of Fact No. 13.

2. Regardless, Claimant's exposure to asbestos hazard on and after July 1, 1973 was no[t] relevant to the development of his disabling asbestosis and there was no causal relationship between that exposure and the onset of Claimant's disability.

Conclusion of Law No. 2.

In its opinion affirming the referee's decision in this case, the board quoted from this court's decision in Asbestos Insulating Co. v. Workmen's Compensation Appeal Board (McGovern), 73 Pa. Commonwealth Ct. 86, 95, 457 A.2d 1320, 1325 (1983):

Our cases make clear that the statutory requirement in Section 301(c)(2) that a compensable disability or death must result in whole or in part

[ 125 Pa. Commw. Page 416]

    from occupational exposure to the hazard after June 30, 1973 is satisfied by competent medical testimony that the claimant was exposed to the occupational hazard during the critical period and that the whole of the claimant's exposure caused the disability or death. Arco Polymers, Inc. v. Workmen's Compensation Appeal Board, 42 Pa. Commonwealth Ct. 647, 401 A.2d 609 (1979); City of Hazleton v. Workmen's Compensation Appeal Board, 35 Pa. Commonwealth Ct. 477, 386 A.2d 1067 (1978); Workmen's Compensation Appeal Board & Klebick v. Commonwealth of Pennsylvania, 19 Pa. Commonwealth Ct. 499, 338 A.2d 758 (1975). There is no requirement that a physician be able to differentiate the causal contribution of exposure during different periods or that a physician must testify and the referee must find that exposure after June 30, 1973 played a discrete causal role in the development of the disease. Any greater requirement, given present limitations on the science of pathology and the progressive nature of many occupational diseases, would undoubtedly place an insurmountable evidentiary obstacle in the claimant's path and would, therefore, be inconsistent with the mandate that the Act be liberally construed to effect its object of compensation.

The board stated that the claimant's evidence, if accepted, would satisfy the requirements of Asbestos Insulating, but the board said that the referee still was required to make a factual finding on the issue. In the board's view, the referee made a factual finding on this issue based on his resolving a conflict in the medical testimony by making a credibility determination, and a credibility determination could not form the basis on which the board could reverse the referee.

[ 125 Pa. Commw. Page 417]

This court has considered a series of cases involving the interpretation of section 301(c)(2) of the Act, both in relation to asbestos hazard and to other forms of occupational disease hazard. In Workmen's Compensation Appeal Board and Klebick v. Commonwealth, 19 Pa. Commonwealth Ct. 499, 338 A.2d 758 (1975), a claimant who had worked underground in various coal mines from 1936 to July 17, 1973, filed a claim petition alleging total disability from occupational disease. The medical testimony from the claimant's physician was that the claimant was totally and permanently disabled due to coal workers' pneumoconiosis and that his condition was the result of his exposure to dusts while working in the coal mines. The referee granted benefits and the board affirmed. The Commonwealth, liable at that ...

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