Supreme Court Discusses Substantial Evidence Standard of Proof

In Patric Gibson, c/o Kathy Gibson v. WCAB (Armco Stainless & Alloy Products), Appeal of: Armco Stainless & Alloy Products, the Supreme Court reversed the holding of the Commonwealth Court that a co-workers' observation of grey dusty material on the pipes leading from the boiler established the presence of asbestos. The Supreme Court articulated the substantial evidence standard of proof as follows:

• "...information admitted into evidence must have sufficient indicia of reliability and be relevant to the matter under consideration. Accordingly, to test whether the evidence relied upon is substantial evidence in support of a finding, the reviewing court should ascertain whether the evidence admitted is competent, and if it is competent, whether it is sufficient to support the administrative finding. If the evidence is both competent and sufficient, then the finding is supported by substantial evidence." p. 7

In the case, the witness admitted he had no personal knowledge the material was asbestos. Although the Court would allow the witness to have obtained this knowledge by either formal education or practical experience, there was no evidence the witness possessed either.

The practical observation often made is that if one accepts medical evidence the Claimant has asbestosis, then work exposure is a likely cause. The Supreme Court made the following comment on the Claimant's medical evidence:

• "...we are troubled by the absence of testimony from any of Decedent’s treating physicians, the want of a diagnosis of asbestos-related disease during his lifetime, and the lack of a post mortem examination that could have conclusively established asbestos-related disease among the actual contributory causes of death. Further, the existence of apparently inert opacities occurring on Decedent’s chest x-rays over a period of twelve years seriously undermines a finding of asbestos-related disease as a significant cause of death. While unnecessary for a determination in the instant matter, we would caution tribunals considering claims of this nature that the weight to be accorded to evidence of cause of death must reside primarily with the diagnosis of one or more treating physicians or significant findings upon post mortem. After-the-fact testimony by non-treating medical experts, who have had no contact with the decedent, and that is contrary to the diagnosis of a treating physician or the findings on post mortem, may be of limited value in establishing a cause of death." f.n. 5