Monday, October 20, 2003

Issue in Gibson v. WCAB (Armco Stainless & Alloy Products) is the Standard of Proof of Asbestos Exposure

I was provided the .pdf of Gibson v. WCAB (Armco Stainless & Alloy Products), the unreported decision of the Commonwealth Court on which the Supreme Court granted the Employer's Petition for Allowance of Appeal and granted supersedeas.

In the case, the WCJ granted a fatal asbestosis claim, but the Board reversed, finding there was not substantial, competent evidence to support the finding that the Claimant was exposed to asbestos.

The evidence of exposure was a co-worker's testimony that he saw a dark grey, heavy-cotton type material that he believed was asbestos on pipes running in and out of the furnace. The witness indicated the stuff fell off, created dust, and the Claimant would have to sweep up the material as part of his job. The witness finally testified that one facility where he worked with the Claimant was shut down for several years, and it appeared new walls were installed and asbestos material was removed from the walls. The witness admitted, however, that he had no training in identifying asbestos and he could not state with certainty that what he saw was asbestos.

The Commonwealth Court en banc reversed the Board and found that the WCJ properly relied on the testimony of the lay witness under the clear Commonwealth Court precedent regarding the non-technical nature of a Claimant's burden of proof in establishing asbestos exposure. The Court cited Witco-Kendall Co. v. WCAB (Adams), 562 A.2d 397 (Pa. Cmwlth. 1989), petition for allowance of appeal denied, 525 Pa. 652, 581 A.2d 577 (1990) which held, inter alia, that the Claimant's failure to identify the dust to which he was exposed was not fatal to his petition.

The Court did not mention McMullen v. WCAB (City of Philadelphia) which extended this principle to the extent that where the Claimant testified his firehouse underwent asbestos removal, the rebuttable presumption of Section 301(e) arose.

The Dissent in Gibson would have affirmed the Board because the co-employee's testimony was equivocal. Interestingly the dissent distinguished Witco-Kendall on the basis that the Employer in that case did not contest asbestos exposure. This is consistent with application of McMullen which would always establish in the record whether the Employer contests exposure, and if so, what its evidence is to rebut the Claimant's exposure case.

Thanks to Brian S. Frantum, Esquire
Holsten & Associates
Media, PA

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