Cyclops Corporation/Sawhill Tubular Division v. Workmen's Compensation Appeal Board

632 A.2d 617, 158 Pa. Commw. 595, 1993 Pa. Commw. LEXIS 616
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 30, 1993
DocketNo. 2061 C.D. 1992
StatusPublished
Cited by9 cases

This text of 632 A.2d 617 (Cyclops Corporation/Sawhill Tubular Division v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cyclops Corporation/Sawhill Tubular Division v. Workmen's Compensation Appeal Board, 632 A.2d 617, 158 Pa. Commw. 595, 1993 Pa. Commw. LEXIS 616 (Pa. Ct. App. 1993).

Opinion

KELLEY, Judge.

The issue before this court on appeal is whether the Workmen’s Compensation Appeal Board (board) erred in affirming a referee’s decision that an employer had a duty to find alternative employment for a claimant that would not aggravate claimant’s non-disabling work-related pneumoconiosis when it has been established that the claimant was totally disabled due to a non-work-related condition.

Cyclops Corporation/Sawhill Tubular Division (employer) appeals from an order of the board which affirmed a referee’s decision granting William Paulsen (claimant) benefits because employer failed to find claimant alternative employment that would not aggravate claimant’s non-disabling work-related pneumoconiosis. We reverse.

On June 16, 1986, claimant filed a claim petition against employer alleging that he became totally disabled on January 8, 1986, by mixed dust pneumoconiosis as a result of exposure [598]*598to dust and fumes during the course of his employment with employer as a furnace operator. Employer filed a timely and responsive answer denying the claim petition. After a hearing, Referee Morrison made the following relevant findings of fact:

3. That the claimant is currently 54 years of age, having been born April 5, 1934. Claimant is married with no dependent children.
4. That the claimant was employed by the defendant, in. various jobs, since September 22, 1954. Claimant last worked as a furnace operator with an average weekly wage of $553.44. On August 18, 1982 claimant left the defendant’s employ and has not worked at any job since that time.
6. That the claimant testified that he performed the jobs of deburr operator, pressure tester, chipper, material handler, bench operator, furnace operator, swager and square mill saw operator during his employment with the defendant. Claimant stated that the job of furnace operator exposed him constantly to smoke, dust, and fumes. During the time claimant worked, he helped to move bricks that had been torn out of a furnace, however, claimant stated this job only lasted two weeks. Claimant testified that while he was a swage operator he was exposed to fumes from the nearby pickling area. Also, claimant stated that as a square mill saw operator, he was exposed to heavy amounts of dust requiring the wearing of a paper mask.
7. That claimant made no mention during his testimony of any exposure to asbestos.
8. That the claimant admitted to smoking up to 2 packs of cigarettes per day from age 16 or 17 until 1986.
10. That the defendant presented, by deposition, the testimony of Howard Ferringer, defendant’s plant superintendent and an employee, since 1955. Mr. Ferringer disput[599]*599ed several of the claimant’s statements concerning his working conditions. Mr. Ferringer stated that the claimant operated two furnaces, one with an efficient ventilation system, the other with a less effective system. However, both furnaces did ventilate smoke produced in the furnaces away from the operators. Mr. Ferringer admitted that some smoke escaped the system. As for exposure to pickling fumes, Mr. Ferringer testified that the pickling area was separated by a wall and that fumes were vented off before they reach the swager area. He admitted one could smell some odors in the pickling area. Mr. Ferringer admitted that a square mill saw operator’s job was a dusty one. Your Referee finds Mr. Ferringer to be more credible than the claimant in describing the plant’s working conditions.
11. That the claimant has a history of hospitalization for breathing problems dating back to 1975.
12. That the claimant presented the testimony of David Laman, M.D., who is Board Certified in Pulmonary Disease and a “B” reader. Dr. Laman examined the claimant on January 8, 1986. The claimant gave the doctor a history of dust and smoke exposure while employed as a furnace operator, of exposure to pickling fumes and occasional exposure to asbestos.
13. That without reviewing any of the claimant’s prior medical records, Dr. Laman’s examination included a chest x-ray he interpreted as 1/0 s, t at two zones. Pulmonary function tests revealed a severe obstructive disability (FEV 1 only. 79 liters), and blood gases showed severe hypoxemia. Claimant’s x-rays also showed what Dr. Laman read as pleural thickening caused by asbestos exposure. Despite claimant’s history of pneumonia, Dr. Laman denied that it contributed to the thickening seen. The Doctor opined that the claimant has chronic obstructive pulmonary disease and hypoxemia caused by cigarettes, mixed dust pneumoconiosis caused by claimant’s exposure to dust-like substances during his employment, and pleural thickening caused by asbestos [600]*600exposure at work. Dr. Laman opined that mixed dust pneumoconiosis occurs substantially more often in claimant’s occupation and that the mixed dust pneumoconiosis alone would prevent the claimant from performing his job due to a pulmonary disability. Dr. Laman admitted he based his opinions of causation upon the claimant’s own statements concerning his exposure to certain materials.
14. That the defendant presented, by deposition, the testimony of C. Vaughn Strimlan, M.D., Board Certified in Internal Medicine and Pulmonary Diseases. He examined the claimant on April 28, 1987 and reviewed past medical records. Dr. Strimlan opined the claimant suffered severe obstructive pulmonary disease caused by smoking cigarettes, (emphysema). Dr. Strimlan opined the claimant’s pleural thickening was related to pneumonia. He saw no signs of asbestos exposure. Dr. Strimlan opined the claimant is totally disabled by the emphysema and a heart condition, not by any pneumoconiotic disease. He did admit the claimant exhibited x-ray signs of simple pneumoconiosis and that this could contribute to the smoking induced pulmonary disability. In addition, the doctor stated exposure to occupational smoke and fumes could aggravate claimant’s disability. Your Referee finds Dr. Strimlan to be credible.
17. That your Referee finds as fact that the evidence presented establishes that the claimant was exposed to various substances in the course of his employment which caused him to develop simple mixed dust pneumoconiosis.
18. That your Referee finds the testimony of Dr. Strimlan more credible than Dr. Laman’s in establishing as fact that the claimant is totally disabled by cigarette induced obstructive pulmonary disease and not pneumoconiosis.

Therefore, Referee Morrison concluded that claimant failed to present substantial, competent, credible evidence to meet the burden of proof necessary to establish he was entitled to compensation for a disability caused by a work-related occupational disease. Relying on Pawlosky v. Workmen’s Compen[601]*601sation Appeal Board, 514 Pa. 450, 525 A.2d 1204 (1987) and Farguhar v. Workmen’s Compensation Appeal Board (Corning Glass), 515 Pa. 315, 528 A.2d 580

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Cyclops Corp. v. WCAB (PAULSEN)
632 A.2d 617 (Commonwealth Court of Pennsylvania, 1993)

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Bluebook (online)
632 A.2d 617, 158 Pa. Commw. 595, 1993 Pa. Commw. LEXIS 616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cyclops-corporationsawhill-tubular-division-v-workmens-compensation-pacommwct-1993.