Bambrick v. Asten Hill Mfg. Co.

Dissenting Opinion by

Judge Kramer:

I respectfully but vigorously dissent.

The decisional law of this Commonwealth requires that courts liberally construe the Occupational Disease *672Act (Act), Act of June 21, 1939, P. L. 566, as amended, 77 P.S. 1201, et seq., in favor of the employee so as to effectuate the remedial and humanitarian purposes of the Act. See Habovick v. Curtiss-Wright Corp., 207 Pa. Superior Ct. 80, 215 A. 2d 389 (1965); Butler v. U. S. Steel Corp., 205 Pa. Superior Ct. 508, 211 A. 2d 35 (1965); DeMascola v. City of Lancaster, 200 Pa. Superior Ct. 365, 189 A. 2d 333 (1963).

This Court has held repeatedly that it will not disturb the findings of the Workmen’s Compensation Board (Board) unless there has occurred a capricious disregard of competent evidence. We have said that the credibility of the witnesses and the weight to be accorded such testimony is within the prerogative and discretion of the Board. See Stump v. Follmer Trucking Co., 4 Pa. Commonwealth Ct. 110, 286 A. 2d 1 (1972) and Fesh v. American Steel and Wire Division, U. S. Steel Corp., 4 Pa. Commonwealth Ct. 84, 286 A. 2d 10 (1972). A reviewing court should not substitute its judgment of the credibility and weight of testimony and evidence for that of the duly authorized and legislatively directed finders of the facts, viz., the Board. State Workmen's Insurance Fund v. Young, 2 Pa. Commonwealth Ct. 423, 276 A. 2d 552 (1971).

The only issue raised by the appellants in this case is whether there was competent medical evidence to support a finding of a causal relationship between the exposure to asbestos and the actual cause of death. I have carefully reviewed the record in this case and have read the testimony of the expert witnesses several times. I am at a complete loss as to how the majority can hold that there was “no” or “insufficient” evidence to support the findings and conclusions of the Referee, the Board, and the Court below, all of which granted the benefits under the Act to the claimants.

My research leads me to believe that Dr. Trying j. Selikoff, the claimants’ expert witness in all of the *673cases here at issue, if not the leading expert, is certainly one of the world’s leading authorities on the subject of asbestosis. Dr. Selikoff’s testimony in the records of these cases is more than adequate to support the findings and conclusions reached in the adjudications. To prove my point, I will set forth a small portion of Dr. Selikoff’s testimony which proves conclusively that the adjudication is supported by substantial evidence. For instance, after having been given the usual long hypothetical question, the Doctor was asked if he had an opinion whether Mr. Bambrick had asbestosis. His answer was: “Yes, sir, review of the pathological findings by Dr. Fite at the Germantown Hospital there is no doubt whatsoever that this man had asbestosis. . . . The morphologic contour and the iron contents of these structures indicate beyond significant doubt their asbestotic nature. What Dr. Fite is describing are asbestos bodies and these are characteristic tissue reaction to the presence of asbestos fibers.” (Emphasis added) (R. 41 a-42a)

It is true as stated by the majority that Dr. Selikoff gave as his opinion at R. 43a: “Far from any uncertainty I feel very confident that Mr. Bambrick died of a carcinoma of the lung consequent upon asbestos ewposure.” (Emphasis added) We do no harm to the reputation of claimants’ medical expert by reviewing his testimony in its totality, and indeed it is our judicial duty to so comport. The Doctor then went on and in great detail explained how the asbestos needle-like fibers are inhaled into the lungs and through the movement of the lung become lodged in the peripheral walls of the lungs for the life of the individual. In great detail he explained how workers exposed to sufficient quantities of asbestos fibers may be disabled or eventually killed. He proved this graphically with many statistics. He talked about the unique location *674of asbestos fibers in the lungs of such workers. He stated such things as: “There is a peculiarity about lung cancer associated with asbestos exposure however, in that it occurs typically peripherally in the outer part of the lung.” (R. 51a)

The record clearly shows that Mr. Bambrick had that peculiar kind of cancer which appeared in the peripheral parts of the lung. To Dr. Selikoff this was conclusive proof that Mr. Bambrick’s lung cancer was directly related to his asbestos exposure. He stated: “The only thing I know from the information that I have is that Mr. Bambrick had a lung cancer associated with asbestos. . . .” (R. 56a) Dr. Selikoff even went further to show that an asbestos worker who smoked cigarettes regularly had an increased incident of lung cancer, nine times greater than the general population, and many times greater than a nonsmoking asbestos worker. Mr. Bambrick was a cigarette smoker.

When asked to define asbestos, he stated: “There is no such thing. Asbestos is a generic term to describe a group of fibrous minerals. There are a number of such minerals including chrysotile, amosite, crocidolite, anthrophyllite, and finally tremolite. . . .” (R. 76a) Dr. Selikoff even went on and pointed out that many death certificates will show as the cause of death some cause other than asbestosis when in fact the cause of death is directly related to the asbestos fibers in the lung. My research discloses that exposure to asbestos could result in death which could be diagnosed by some physicians as bronchogenic carcinoma, pleural mesothelioma, peritoneal mesothelioma) carcinoma of the colon, carcinoma of the rectum, carcinoma of the stomach, coronary heart disease, congestive heart failure, broncho-pneumonia, encephalitis, etc. In this Same vein Dr. Selikoff pointed out that many times a doctor, searching for an “easy way out,” will state- on a death certifi*675cate that the cause of death was “coronary insufficiency.” Should a physician’s convenience or erroneous pronouncement deprive an asbestos worker of benefits intended by the Legislature?

It is difficult for this writer to conceive of more substantial testimony from which the Board and the lower court could have determined that there existed a causal relationship between the claimant’s asbestosis and his ultimate disability and death.

Turning now to the Utter case, Ur. Selikoff,. as already noted herein, was also the claimant’s expert medical witness. In that case following the hypothetical question, Ur. Selikoff was asked for his opinion and he stated unequivocally: “Mr, Utter had asbestosis.” (Emphasis added) (R. 96a) In the very next answer he emphatically stated that there was a causal relationship between the asbestosis and the cause of death. It is true as the majority pointed out that when asked for his opinion, he again said: “In my opinion there can be very little doubt that Mr. Utter’s death was due to lung cancer causally related to his asbestos exposure:” (Emphasis added) (R. 97a) He went on and said: “[T]here is an extraordinary association between death due to carcinoma of the lung and industrial employment as an asbestos worker. . . . [T]hat additional information made available very recently makes this association even stronger in the instance of an asbestos worker who smokes cigarettes. . . .” (R. 98a) In describing his review of the medical records in this case, he stated: “The diagnosis bn these films would be pulmonary asbestosis and carcinoma of the lung peripheral in location.” (R. 100a) In speaking of Mr. Utter’s medical records, Ur. Selikoff said that there was a significant finding of asbestos in the lung.- (R. 102a) He noted from the surgery operation records that asbestosis and carcinoma were found during the *676operation, located in the “right upper lobe” at the periphery of Mr. Utter’s lung. Dr. Selikoff described what he meant by “peripheral carcinoma” and related that dreaded disease to asbestos exposure. Once again the record in the Utter case contains more than adequate substantial evidence from which the Board and the Court below could have granted benefits to the claimant.

Although this writer is no medical expert, the record in this case permits me to conclude that expert medical testimony declaring a disability or death directly resulting from asbestosis would be a rare thing indeed. The medical evidence presented leaves one with the conclusion that exposure to asbestos fiber causes other physical malfunctions, disorders or diseases, which are the ultimate cause of death. It seems clear that the presence of the asbestos needle fibers in the peripheral section of the lung causes carcinoma of a special type, heart failure and pulmonary disorders. This being the fact it was quite logical for Dr. Selikoff to state that the cause of death was lung cancer causally related to “asbestos exposure.”

The statutory language of the Act, at 77 P.S. 1208, states:

“The term ‘occupational disease,’ as used in this act, shall mean only the following diseases: . . .

“(1) Asbestosis in any occupation involving direct contact with, handling of, or exposure to the dust of asbestos.” (Emphasis added)

That statutory definition, together with the direction of precedent that we are to liberally construe this statute for the benefit of the worker, leads me to the conclusion that the opinion of the lower court should be affirmed. To hold otherwise would frustrate the legislative purpose of the General Assembly in providing compensation benefits to those workers of this *677Commonwealth, who have been, exposed to asbestos in their employment. As I read the majority opinion, it would be a rare case where an asbestos worker in this Commonwealth would be able to realize benefits under the Act, because my research indicates it would be rare that medical experts would, testify that the actual cause of death was asbestosis. My reading of the cases and the statute leads me to believe that the Legislature intended to confer benefits upon workers (and their families) who are totally disabled or killed from any disease, disorder or physical malfunction brought about or caused by their exposure to asbestos.- The majority opinion defeats that legislative purpose. I would affirm the court below.

Judge Orumlish, Jr. joins in this dissenting opinion.