Gibson v. Workers' Compensation Appeal Board

861 A.2d 938, 580 Pa. 470, 2004 Pa. LEXIS 2842
CourtSupreme Court of Pennsylvania
DecidedNovember 22, 2004
Docket39 WAP 2003
StatusPublished
Cited by55 cases

This text of 861 A.2d 938 (Gibson v. Workers' Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gibson v. Workers' Compensation Appeal Board, 861 A.2d 938, 580 Pa. 470, 2004 Pa. LEXIS 2842 (Pa. 2004).

Opinions

OPINION

Justice NEWMAN.

Armco Stainless & Alloy Products (Appellant) appeals by allowance an Order of the Commonwealth Court reversing a decision of the Workers’ Compensation Appeal Board (Board). The Board had reversed a decision of a Workers’ Compensation Judge (WCJ) that granted the Fatal Claim Petition of Kathy J. Gibson (Claimant) following the death of her husband, Patrie Gibson (Decedent). Further, Appellant filed an Application for Supersedeas with this Court to stay the award of death benefits. By Order of October 1, 2003, this Court granted the Application for Supersedeas. Given the standard that we articulate today for the admission of lay opinion evidence of a technical or scientific nature in workers’ compensation proceedings, we now reverse the Order of the Commonwealth Court.

FACTS AND PROCEDURAL HISTORY

Decedent, who worked as a laborer for Appellant in the maintenance department of its Pittsburgh and Bridgeville steel plants and smoked one and one-half to two packs of [475]*475cigarettes per day, died on October 14, 1994, from complications of bronchogenic lung cancer. On October 2,1997, Claimant filed a Fatal Claim Petition alleging that her husband died as a result of continuous exposure to deleterious fumes, gases, dust, and particles, including asbestos, while working for Appellant. The death certificate listed hemoptysis1 due to lung cancer as the primary cause of death, with laryngeal nerve paralysis and adrenal metastases as secondary causes. (Death Certificate dated October 17, 1994.) There is no mention of asbestosis, mesothelioma, or any asbestos-related disease.

At the hearing before the WCJ, Claimant presented the deposition testimony of Gregory L. Grier, Sr. (Mr. Grier), an employee of Appellant. Mr. Grier had worked at both the Pittsburgh and Bridgeville facilities during some of the same periods as Decedent over an interval of twelve to fourteen years. Mr. Grier testified that, when he worked at the Pittsburgh facility, he had seen a dark gray, heavy, cotton-type material that he believed was asbestos falling off the water piping that ran in and out of the furnace. (Grier Deposition dated February 25, 1998 at 18-19, 21-22.) He also testified that there was a dark gray material present at the Bridgeville facility that looked like it was sprayed on, which was also falling off the wall and laying on the ground. Id. at 29. He further stated that he did not have training or education concerning asbestos, that he would not be able to identify asbestos from other similar materials, and that he could not state with certainty that what he saw at the Pittsburgh and Bridgeville facilities was asbestos. Id. at 46-47.

Claimant also offered the deposition testimony of David Laman, M.D. (Dr. Laman), who testified that, based upon his review of Decedent’s medical records, including three chest x-rays and chest CT scan, he found the presence of interstitial fibrosis, which he rated as a profusion of 1/0 s.t.,2 that he [476]*476considered consistent with asbestos exposure, and evidence of fullness in the left hilum3 consistent with his lung cancer. Dr. Laman opined that Decedent’s lung cancer was due to asbestos exposure to a substantial degree as well as to his long history of cigarette smoking. On cross-examination, however, Dr. Laman testified that: (1) there was nothing in the medical records that indicated any asbestos exposure; (2) he was unaware of the specifics of Decedent’s job or any particular asbestos exposures Decedent may have had; (3) his medical reports noted that he was “assuming” that Decedent had significant exposure to respirable asbestos materials because of his occupation; and (4) an individual could have interstitial fibrosis from causes other than asbestos exposure. Dr. La-man also admitted that the interstitial fibrosis on the x-ray films remained exactly the same on the four chest films taken over a twelve-year period.

In opposition, Appellant presented the testimony of Peter Kaplan, M.D. (Dr. Kaplan), who also is board-certified in internal medicine, pulmonary diseases, critical care medicine, and is a B-reader.4 Dr. Kaplan testified that he reviewed [477]*477Decedent’s medical records and concluded that Decedent had well-documented lung carcinoma and died as a result of the disease. He testified that Decedent’s heavy cigarette smoking would relate to a significant and definite risk of lung cancer. Dr. Kaplan opined that there was no support for the assertion that work exposure to asbestos played any role in Claimant’s death, and his records showed no evidence of any asbestos-related diseases.

On cross-examination, Dr. Kaplan testified that he did not review any of the four x-ray films or the CT scan; instead, he relied only on the reports. Dr. Kaplan further testified that the S and T opacities were irregular-shaped and consistent with asbestosis, but acknowledged that, although a 1/1 profusion was usually required for a diagnosis of asbestosis, he had accepted a profusion of 1/0 in the past.

The WCJ credited the testimony of Mr. Grier, indicating that he had done so because it was unrebutted, and accepted the testimony of Dr. Laman over that of Dr. Kaplan, primarily due to Dr. Kaplan’s failure to review the x-rays and CT scan. Based on this credited evidence, the WCJ found that Decedent had longstanding and continuous exposure to asbestos while working for Appellant, and his asbestosis was a significant contributing factor to his lung cancer and death. Accordingly, the WCJ granted Claimant’s Fatal Claim Petition. Appellant appealed to the Board, which reversed the decision of the WCJ grounded on the premise that there was no substantial, competent evidence to support the finding that Claimant was exposed to asbestos while working for Appellant.

The Commonwealth Court reversed in a narrow four to three decision. The Majority Opinion relied upon the prior Opinion of that court in Witco-Kendall Co. v. Workmen’s Compensation Appeal Bd. (Adams), 127 Pa.Cmwlth.509, 562 A.2d 397 (1989), petition for allowance of appeal denied, 525 [478]*478Pa. 652, 581 A.2d 577 (1990), which held that a claimant’s description of his working conditions is sufficient to establish occupational exposure that may be rebutted by the employer. Specifically, the court there held that a claimant is not required to provide scientific evidence of a hazardous level of exposure to a toxic substance in his workplace and that his failure to identify the dust to which he was exposed as asbestos was not fatal to a claim for benefits. In WitcoKendall, this testimony, in conjunction with other evidence, was sufficient for a finding of total disability from asbestos-related disease. Thus, the Majority opined that the testimony of Mr. Grier in the instant matter was sufficient evidence to support the determination of the WCJ that asbestos exposure was a significant contributing factor in the death of Decedent.

Judge Pellegrini authored a dissent, which was joined by Judge Cohn and Judge Leavitt. He observed that there was no evidence in this case that asbestos was present in the workplace. He also noted that Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
861 A.2d 938, 580 Pa. 470, 2004 Pa. LEXIS 2842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibson-v-workers-compensation-appeal-board-pa-2004.