Bucyrus-Erie Co. v. Workmen's Compensation Appeal Board

525 A.2d 881, 106 Pa. Commw. 185, 1987 Pa. Commw. LEXIS 2163
Commonwealth Court of Pennsylvania·Decided May 15, 1987·No. Appeal, No. 1877 C.D. 1985·Published·Cited by 3 cases

Opinion

Opinion by

Judge MacPhail,

Argonaut Insurance Company (Argonaut) petitions for our review of an order of the Workmen's Compensa[187] tion Appeal Board (Board) which affirmed an order of a referee ordering Argonaut to pay John B. Gourn (Claimant) disability benefits under The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1031. We affirm.

The sole issue we are confronted with is whether Argonaut is liable to pay Claimant the benefits or whether one of the insurance companies that was previously the workmen's compensation carrier for the Bucyrus-Erie Company (Employer) should be liable.

We keep in mind that our scope of review of Board decisions is limited to determining whether an- error of law was committed, whether any necessary fact findings are not supported by substantial evidence or whether constitutional rights have been violated. Holgate v. Workmen's Compensation Appeal Board (City of Philadelphia), 104 Pa. Commonwealth Ct. 32, 521 A.2d 82 (1987).

Claimants disability is related to lung cancer which he contracted as a result of his long exposure to asbestos in Employers factory. Central to the. issue presented for our review is the referees finding of fact number seven:

7. In his work as an electrician and maintenance man claimant could work on various pieces of electrical equipment, including motors, cranes, annelling [sic] ovens, mold ovens, welding cables and wrappings. Claimant estimated that he spent approximately four hours each working day working on overhead cranes above the pouring operations. The claimant, in his work as an electrician, would come in contact with materials that contained asbestos. The mold ovens were encased in asbestos. Welders and airarcers would use asbestos cloth to cover castings. Asbestos rope was used as an insulation for castings, and asbestos-covered electric wire was [188] strung overhead. The asbestos products would become airborne either in using the products or as a result of the various tearout processes or wear and tear of the particular product. Some of the asbestos products were no longer in use at the time that claimant ceased working, although there were still some asbestos products in the plant.

Claimants last day of work was January 8, 1980. Argonaut became Employers workmen's compensation carrier on January 1, 1980. Argonaut avers that the Board erred in affirming the referees award because there was no substantial evidence to support a finding that Claimant was exposed to asbestos during the period between January 1, 1980 and January 8, 1980.

Where there have been successive insurance carriers, the insurance carrier whose policy is in effect at the last moment of a claimants exposure to an occupational hazard is the insurance carrier liable to pay benefits. See Insurance Company of North America v. Workmen's Compensation Appeal Board (Dettenmeyer), 504 Pa. 589, 475 A.2d 1323 (1984); Ertz v. Glen Nan, Inc., 29 Pa. Commonwealth Ct. 409, 371 A.2d 533 (1977). The question we must resolve, therefore, is whether the referees finding that Claimant was exposed to asbestos between January 1, 1980 and January 8, 1980 is supported by substantial evidence. We conclude that it is.

During hearings before the referee, Claimant testified as follows:

Q. Do you recall handling any material or working with asbestos between January 1, 1980 and January 8, 1980?
A. No.
Q. Do you recall seeing any asbestos in the plant between January 1, 1980 and January 8, 1980?
[189] A. Yes.
Q. Where was it located?
A. It might still be there on the ovens.
Q. On the oven?
A. Yes, No. 2 mould oven.
Q. What did it look like?
A. Well, its a plaster moulded onto the oven, outside of the oven.
Q. Did you work anywhere in that proximity?
A. Yes.1 (Emphasis added.)

Claimant testified that asbestos fibers from the mould oven coverings became airborne.2 He also testified that he strung asbestos wire cables as late as 19783 and that many of the cables he worked on were covered with asbestos.4

Neither Claimant nor the Employers witness testified that any of the asbestos cables were ever removed. The closest that Michael Volpe, the Employers witness, came to refuting Claimants testimony came in the following exchange:

Q. And from 1979 through 1981 did the plant have on its premises to your knowledge, any asbestos products?
A. Not that I know of.5

It is clear that the referee merely chose to believe Claimants testimony over that of Mr. Volpe. He made a fair inference that there was still asbestos in the plant. [190] Of course, a referee may accept or reject the testimony of any witness in whole, or in part, and credibility determinations are exclusively within the referees discretion. Borkowski v. Workmen's Compensation Appeal Board (John F. Kennedy Medical Center), 74 Pa. Commonwealth Ct. 310, 459 A.2d 1336 (1983).

Claimant testified that through working in the plant he came to recognize asbestos when he saw it.6 The referee was well within his discretion in determining that there was still asbestos in the plant in 1980 despite Mr. Volpe’s testimony. As this Court stated in Houze Glass Corp. v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 537, 402 A.2d 1124 (1979):

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Bucyrus-Erie Co. v. Workmen's Compensation Appeal Board, 525 A.2d 881, 106 Pa. Commw. 185, 1987 Pa. Commw. LEXIS 2163 (Pa. Ct. App. 1987).

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