*1 861A.2d 938 GIBSON, Kathy Gibson, Patric J. c/o (ARMCO WORKERS’ APPEAL COMPENSATION BOARD PRODUCTS), & STAINLESS ALLOY Appeal Alloy of Armco Stainless & Products.
Supreme Pennsylvania. Court
Argued March 2004.
Decided Nov. *4 Lee, Alloy for Armco & Pittsburgh, Albert S. Stainless Products. Kenger, Mechanicsburg, Lengler, Marie Richard C.
Amber Harrisburg, for W.C.A.B. Parr, T. for Patrie Shipp, Pittsburgh,
Darren Keith Jason Kathy Gibson J. Gibson. c/o CAPPY, C.J., CASTILLE, NIGRO, NEWMAN,
Before: SAYLOR, BAER, EAKIN and JJ.
OPINION Justice NEWMAN. Alloy
Armco Stainless & Products (Appellant) appeals by reversing allowance an Order of the Commonwealth Court (Board). Compensation Appeal decision the Workers’ Board Board of a Compensa- had reversed decision Workers’ (WCJ) Judge granted tion Fatal Claim Petition (Claimant) Kathy following J. Gibson the death of her hus- (Decedent). Further, band, Patrie Appellant Gibson filed an Supersedeas stay for with this Court to the award Application 1, 2003, By death benefits. Order of October this Court for granted Application Supersedeas. Given the standard today lay opinion that we articulate the admission of evidence of a technical or scientific compen- nature workers’ sation now proceedings, we reverse the Order of the Common- wealth Court. AND
FACTS PROCEDURAL HISTORY Decedent, Appellant who worked as a laborer for department Pittsburgh Bridgeville maintenance its plants packs steel and smoked one one-half to two *5 14, 1994, on cigarettes per day, complica died October from 2,1997, bronchogenic lung tions of cancer. On October Claim ant filed a Fatal Claim Petition alleging her husband died fumes, as a of continuous gases, result deleterious dust, asbestos, particles, including while Appellant. The death certificate listed hemoptysis1 due death, as lung primary cancer cause of with laryngeal paralysis secondary nerve and adrenal metastases as causes. (Death 1994.) Certificate dated October There no asbestosis, mesothelioma, any mention asbestos-related disease. WCJ,
At hearing before the Claimant presented the (Mr. Grier, Grier), deposition testimony Gregory L. Sr. employee Appellant. Mr. worked at both the Pittsburgh Bridgeville during facilities some the same as periods Decedent over an interval twelve to fourteen that, years. Mr. Grier testified when he worked at Pittsburgh facility, he had seen a dark gray, heavy, cotton- type material he believed was asbestos falling off the (Grier that ran in piping water and out of the furnace. 18-19, 21-22.) Deposition February dated 1998 at also He testified that there was a gray dark material at present Bridgeville facility on, that looked like it was sprayed which was also off falling laying the wall and ground. Id. at 29. He further stated that he did not training have asbestos, concerning education that he would not be able to identify materials, from other similar and that he could not certainty state with that what he saw at Pitts- burgh Bridgeville facilities was asbestos. Id. at 46-47.
Claimant also deposition offered the testimony of David (Dr. Laman, Laman), M.D. that, who testified upon based his records, review of Decedent’s medical including three x- chest scan, rays and chest CT he found of interstitial fibrosis, s.t.,2 he rated as a profusion that he 1/0 (1995), Dictionary, 1. Stedman’s Medical ‘‘hemop- 26th ed. 781 defines tysis” spitting pulmonary blood as from a bronchial or hemor- rhage. “Opacities lung variety in the only come in a of sizes but are of two s, t, types—rounded irregular.... designation [A] or u indicates with and evidence exposure, consistent considered Dr. hilum3 cancer. lung fullness in the left consistent to asbes lung Laman that Decedent’s cancer was due opined his long to a substantial as well as to degree tos *6 however, cross-examination, history smoking. of On cigarette (1) that: medical nothing Dr. there was Laman testified (2) any he was exposure; records that indicated asbestos job specifics any particular unaware of the Decedent’s had; (3) Decedent have his medical exposures may had “assuming” that he was Decedent reports noted respirable because significant exposure materials (4) could of his and an individual have interstitial occupation; exposure. other Dr. La- fibrosis from causes than asbestos x-ray man also admitted the interstitial fibrosis on the four exactly films the same on the chest films taken remained a twelve-year period. over
In of Peter opposition, Appellant presented (Dr. also is Kaplan, Kaplan), M.D. who board-certified medicine, medicine, diseases, critical care pulmonary internal Dr. and is a testified that he reviewed Kaplan B-reader.4 presence irregularly designations shaped opacities. The letter represent increasing opacities than 1.5 also size of from less diameter, designation, up "p" or "s" to 10 millimeters in which is the diameter, designation.” "u" millimeters in which is the "r” or U.S. Labor, Department Judges’ Lung Act Benchbook Black Benefits (2003), Chapter http://www.oalj.dol.gov/public/bla- 2. (hereinafter lung/refrnc/Beno2.htm July “Judges' last 2004 visited Benchbook"). rating. quantity opacities reflected in the is 1/0 following: This is based on = opacities profuse category 0 absent than in small or less = definitely opacities present but few in small number. = lung opacities markings visible. small numerous but normal still = very lung markings are opacities small numerous and normal totally usually partly or obscured. Id. point organ 3. The hilum that where the nerves and blood lung wedge-shaped vessels leave. The hilum of the is "a enter and depression chus, lung, mediastinal of each where the bron- on the surface vessels, nerves, lymphatics enter node." blood and and leave the (1995). Dictionary, Medical 26th ed. 798 Stedman's qualified by quantify qualify 4. A one examination to and B-reader is x-rays, precursors on and is of asbestos-related disease chest "final B-reader is more also known as a reader.” The considered had concluded that Decedent and records medical Decedent’s as a result and died carcinoma lung well-documented smoking heavy cigarette that Decedent’s testified He disease. lung cancer. risk definite significant to a would relate for the assertion was no that there Kaplan opined Dr. role Claimant’s any played to asbestos that work asbestos- any no showed death, his records diseases. related did not that he cross-examination, Dr. testified Kaplan
On
instead,
scan;
he
films
the CT
x-ray
of the four
any
review
further testified
Kaplan
Dr.
reports.
on the
only
relied
consistent
irregular-shaped
T
were
opacities
S and
that, although
profu-
asbestosis,
acknowledged
but
1/1
asbestosis,
he
diagnosis
usually required
sion
past.
profusion
accepted
1/0
Grier, indicating
testimony of Mr.
credited
The WCJ
unrebutted,
accepted
it was
so
*7
that
had done
because
he
Kaplan, primarily
that of Dr.
Dr. Laman over
testimony of
and
scan.
x-rays
CT
to review
Kaplan’s
to Dr.
failure
due
that
evidence,
found
Decedent
the WCJ
on this credited
Based
while
to asbestos
exposure
continuous
longstanding
had
a significant
his
was
asbestosis
Appellant,
for
working
Accordingly,
cancer and death.
lung
factor to his
contributing
Appellant
Fatal Claim Petition.
Claimant’s
granted
the WCJ
Board,
decision
which reversed the
to the
appealed
substantial,
was no
that there
premise
on the
grounded
WCJ
was
finding that Claimant
competent evidence
Appellant.
for
while
exposed
asbestos
four to
in a narrow
reversed
Court
The Commonwealth
prior
upon
relied
Majority Opinion
three decision.
Co. Workmen’s
that court Witco-Kendall
Opinion
Pa.Cmwlth.509, 562
(Adams), 127
Bd.
Appeal
Compensation
denied, (1989),
appeal
allowance
petition
A.2d 397
pass
He or she must
any
than an A-reader.
qualified than
reader other
by
the Inter-
NIOSH on behalf of
rigorous examination administered
assessing
proficiency in
Organization to demonstrate
national Labor
maintains a
Department of Labor
classifying x-ray evidence. The
Benchbook,
Judges’
of certification.
and their dates
list of B-readers
supra.
(1990),
Pa.
Judge Pellegrini dissent, authored a joined Judge Cohn and Judge Leavitt. He observed that there was no evidence in this case that asbestos was present workplace. He also noted Dr. Laman testified that his report was based on the assumption Decedent signifi- cant to asbestos only steelworker, because he was a and that the medical records he reviewed did not identify any or disease. Judge Pellegrini would have affirmed the decision of deny the Board to Claimant’s Fatal Claim Petition.
Appellant’s principal challenge judice, matter sub the WCJ in permitting erred Claimant to adduce opinion testimony on a technical or scientific issue relative to workplace exposure to asbestos.5 granted We allowance of Appellant specifically challenge does of the WCJ that *8 significant contributing was a factor in the death of Decedent, Record, as it (Original did before the Appeal Board. from Law, Findings 23, 2001, Referee’s of Fact July and Conclusions of filed Attachment.) that, Despite by we are troubled the absence of any from treating physicians, of diagnosis Decedent’s the want of a of lifetime, during asbestos-related disease post and the lack of a mortem conclusively examination that could have established asbestos- among related disease ther, contributory the actual causes of death. Fur- apparently the existence opacities occurring inert on Decedent’s x-rays period chest over years seriously a of twelve undermines a finding of significant asbestos-related disease as a cause of death. unnecessary matter, While for a determination in the instant we would
479 appeal parameters to examine the on opinion technical within of a compensa- matters the context workers’ tion and whether substantial proceeding supported an award of fatal claim in this benefits instance.
DISCUSSION begin We the touchstone of compensa workers’ that, tion jurisprudence, pro holds a claim petition ceeding, establishing claimant bears the burden a work- its on injury wage earning related causal effect capacity. Vista Int’l Hotel Workmen’s Compensation Appeal Bd. (Daniels), 12, 649, (1999). 560 742 654 Pa. A.2d In the classic claim petition proceeding, the shoulders this employee burden in order to medical continuing receive benefits. wage petition, Within the of a fatal claim context the surviving family member bears the responsibility substantiate the necessary elements to merit benefit award. Those ele ments encompass establishment of injury work-related disease, occupational impact on the earning capacity and, employee, in the case of a fatal claim petition, that this injury or disease a substantial contributing cause bringing about the employee. death McCloskey v. (J.H. Workmen’s Compensation Appeal Bd. France Refracto ries, Inc.), Pa.93, (1983). As with all claim petitions, necessary the elements support award must be established substantial evidence.
Substantial evidence has been defined as such relevant might evidence as a adequate reasonable mind accept Yoder, Twp. conclusion. Clites v. Upper 506 Pa. (1984). 485 A.2d is This but toway another state that information admitted into evidence must have sufficient indicia of reliability and be relevant matter under considering weight caution tribunals claims this nature that the to be accorded primarily to evidence cause of must death reside with the diagnosis treating physicians significant of one or more findings upon post testimony by non-treating mortem. After-the-fact medical experts, decedent, who have had no contact with and that diagnosis contrary treating physician findings post to the of a or the
mortem, may establishing be of limited value in cause death. *9 Accordingly, to test whether the evidence re- consideration. finding, of a the upon support lied is substantial evidence ascertain the evidence admit- court should whether reviewing it is it is competent, is if whether sufficient competent, ted and is finding. If the evidence both support the administrative sufficient, by is finding supported then the competent substantial evidence. no support that is evidence to
Appellant asserts there expo- had and continuous finding longstanding that Decedent asbestos, It any in fact asbestos. sure or of accept testimony that no reasonable mind could argues It long-term exposure. as of asbestos supportive Mr. Grier lay testimony by this both upon opinion the reliance challenges an of Court to effect award the WCJ and Commonwealth that Court Appellant complains the Commonwealth benefits. standard of essentially eviscerated substantial evidence lay testimony ordinary that an by holding review worker, knowledge limited of Decedent’s who had conditions, finding longstanding and continuous supports Thus, is it contends the evidence exposure. asbestos of the insufficient determination WCJ. competent must both Substantial evidence be of Mr. determining testimony In whether the sufficient. able form the basis (competent) admitted properly long-term of the the WCJ Decedent (sufficient), we examin workplace begin provides: ing text Pa.R.E. as testifying expert,
If
witness is not
an
the witness’
opinions
form
inferences
limited
on
rationally
those
or inferences which are
based
opinions
witness,
to a clear understand
perception
helpful
a fact
ing
of the witness’
the determination
scientific, technical,
issue,
or other
and not based on
within the
of Rule 702.6
specialized knowledge
scope
argue
expert subject to
Appellant
the strictures of
does not
provide
of an
in the work-
Rule 702 must
testimony.
aspect
opinion
place,
we decline to comment on this
rationally
opinions
contemplates
admission
Rule
that are
to the trier
personal
helpful
knowledge
based
law,
qualifying
experts
At common
witnesses
fact.
*10
regarding
things
those
testify
to
generally permitted
were
felt, tasted, smelled,” or
“[seen], heard,
done.
they
(1978).
509,
941,
Mellor,
393
946
259
A.2d
Pa.Super.
Lewis v.
Court,
history, inter
very
This
from
in Commonwealth
early
qualified
individuals not
permit
the
of
to
preted
rules
or
knowl
experience
specialized
experts,
possessing
but
have
might
matters that
been
edge,
testify
to
about technical
See,
experts.
of
province
to
within the exclusive
thought
be
(Pa.1805)
Bear,
of
(opinions
Irwin
4
262
settlers
e.g.,
v.
Yeates
in land
of streams admissible
knowledge
early
of
names
Caruthers,
(Pa.1803)
case);
(specialized
527
Forbes v.
3 Yeates
witness).
v.
personal
Pennsyl
also Graham
knowledge
See
(1891)
Co.,
149,
that the
(holding
vania
139 Pa.
appraisal expert lay testimony when it stated: “The distinction an expert non-expert between and a is that witness a non-expert witness’s from a process results reasoning everyday familiar an expert’s testimony life and results from a process which can reasoning be mastered only Brown, by specialists the field.” State 836 S.W.2d (Tenn.1992). law, At every person competent be by witness provided unless otherwise statute Rules However, Evidence. Pa.R.E. not may witness testify to a unless matter evidence is introduced sufficient personal has knowledge witness Therefore, if matter. Pa.R.E. 602. the witness is expert, as an testifying the witness’ form of *11 opinions or is opinions inferences limited to those or infer personal knowledge ences that are within the of the witness and can assist the trier fact to obtain clear understanding determination a fact in Pa.R.E. issue. 701. In the matter, instant was to show that required Claimant Decedent (a) asbestos, was: is an exposed acknowledged (b) within workplace Act; hazard the in Occupational Disease (c) employment; the course of his that and asbestos-related significant contributing disease formed a cause of his death. Thus, proof asbestos was the critical element her case.
In concluding that Claimant
her burden of proving
met
long-term
exposure,
asbestos
the Commonwealth Court relied
on
Compensation
Witco-Kendall Co.
Appeal
Workmen’s
(Adams),
Bd.
(1989),
127 Pa.Cmwlth.
A.2d 397
peti
denied,
tion
allowance
Pa.
appeal
Judge Pellegrini
concluding that
there
was
no substantial evidence to
findings
Witco-Kendall agree.
WCJ.
eminently distinguishable.
We
Witco-Kendall conceded the
employer
1974;
plant
up
at least
until
claimant
there
testifying
from first-hand knowledge of his
condi
basis;
tions
he was exposed
to asbestos on a continuing
also,
significantly,
claimant there had been diagnosed
matter,
In
present
asbestosis.
no witness with first-
matter,
Court, relying
In
instant
Commonwealth
on Witco-
Kendall,
expert
required
observed that
is not
establish
presence of
workplace
asbestos in the
and that the
claimant, alone,
exposure. My
colleague
can establish
esteemed
does
object
application
to this “flexible
of the substantial evidence
standard,"
950),
Opinion,
(Concurring
Saylor, J. at
861 A.2d at
though
even
he notes that “in those instances where the Common-
accepted lay testimony
exposure,
wealth Court has
on the
issue
*12
490,
positive
presented
evidence has been more
than that
here.” Id. at
However,
precisely
hand testified there a that he saw Decedent near Mr. testified place. simply No identify.8 he material that was unable dusty, cottony had that knowledge testified Decedent with first-hand witness disease, any of records nor did Decedent’s asbestos-related any treating he of asbestos spoken that state evidence, a is lack substantial simply There physician. sufficient, that Dece a competent either caused, by asbestos- part, was substantial dent’s death in the opinion testimony the lay Contrast related disease. Inc., S, A.2d in Harahan v. AC & 816 with that instant matter brought a widow (Pa.Super.2003). products There manufacturer of sealant liability against pipe action from that death her husband roofing alleging cement his during inhalation was the result asbestos mesothelioma9 pipe as a fitter. twenty-seven-year employment by established workplace in the was worker of two co-workers. One testified opinion testimony liquid went on as containing the sealant clear Dust from around when it dried. came but created dust air, clothes, from tools. from from the their their pipes, contained asbestos product indicated that he knew He cans....” Id. at 298. When asbestos on the “[i]t because said was when dust how close he worked the decedent asked sealant, “no than replied he further by created the use to the away.” Id. further testified as length an arm’s He inhalation, use, frequency product’s regularity competent testify to the disputed Grier was as It cannot be that Mr. Pittsburgh pres- Bridgeville plants, and the dusty condition personally He cottony pipes floor. ence of material on However, things. testimony, he Grier’s in which Mr. observed these plants asbestos but was material he observed in the stated not, .the admission, any personal knowledge. by See based on own (R.R.) (“I hearsay, just—as you call at 69-70a it Reproduced Record said____”). people went what surrounding the of the mesothelial tissue 9. Mesothelioma is cancer exception exposed those lung, which a rare disease is and the It the most of the asbestos-related cancers asbestos. serious Sporio having an asbestos causation. most identifiable Constr.), Pa.44, Compensation Appeal (Songer Bd. Workers' (1998).
485 matter, and, unlike the instant protection, respiratory lack of workplace asbestos in the presence established credibly personal knowledge. through by the further undermined findings of the are WCJ who testi Laman, expert, medical of Dr. Claimant’s Decedent, that, assumption on the report he based
fied mill, to exposed in worked a steel been because he took is tantamount Court what The Commonwealth asbestos. in mills to of the of asbestos steel judicial notice involving four “the Opinion citing of its cases by footnote ten indus and common existence of asbestos the steel repeated (Arm Bd. Compensation Appeal Gibson Workers’ try____” Products), 2002, at slip op. co No. 1860 C.D. Alloy& Stainless 2003). (Pa.Cmwlth. 8,May 8 10 filed n.
Pursuant Commonwealth’s Administrative by shall not be bound agencies Law: “Commonwealth Agency hearings, at and all relevant agency technical rules evidence may value reasonably probative be received.” evidence correctly This maxim statutory § 505. has been Pa.C.S. strict rules interpreted mandate relaxation by a hearings such as those held proceedings, evidence However, within forum has the administrative there WCJ. note a total abandonment of all rules evidence. We been that, general, questions concerning the admission exclu tribunal sion of are within sound discretion of the of an appeal and are not be reversed on absent Welfare, v. Dept. abuse of discretion. Morrison Public (1994). Health, Mental 538 Pa. Office of Act10 for a the Workers’ Although Compensation provides evidence, this cannot relaxation rules of relaxation permitting person identify workplace include untrained specialized training. without personal knowledge substance cited, holding Common approval, This Court proceedings Court other administrative the effect wealth evidence, “hearsay rule is not a technical mere rule ought rule followed but fundamental of law be 1-1041.4; 2, 1915, amended, §§ 10. Act of June P.L. 77 P.S. 2501-2626. agencies when crucial to the issue sought are to be facts placed on objection the record and an is made thereto.” A. Y. *14 Svcs., v. Allegheny 116, Co. Children & Youth 537 Pa. 1148, (1994) (citations (emphasis in original) omit ted). We believe that another fundamental rule law is that witnesses must have first-hand knowledge subject the on which they are for that testifying testimony be admissible. succinctly, 602, 701, Stated evidentiary Rules and 702 are applicable agency proceedings general, in including work compensation ers’ proceedings. on
Relying cross-examination to expose the weaknesses of lay opinion testimony does not suffice to erase the error of improperly admitted evidence. Total on reliance cross-exami- nation permits the party propounding the evidence to intro- duce it in generally a conclusory manner without relation to the record and casts the entire burden of it on disqualifying opponent. the “This contrary is practice the usual allocating evidence, to the proponent party with the oar, laboring duty a laying logically understandable Struth, 554, foundation.” Kozak 515 Pa. 531 A.2d (1987).
CONCLUSION admissibility of lay opinion not with out limit. Given the standard we articulate today admission of lay opinion nature, evidence of a technical we conclude that the WCJ failed to examine with rigor sufficient whether question was informed by sufficient experience or specialized knowledge. particularly, More satisfy order to “rationally helpfulness derived” and stan dards of Rule Claimant needed to demonstrate that the possessed witness experience sufficient or specialized knowl edge that qualified him to offer technical opinion regarding the workplace. While a lay witness could this acquire additional insight by either formal education or practical experience, it appears the witness at issue simply possessed neither.
Actual knowledge part observation of the are the reception witness essential bases for the opinion. Pursuant to may testify Rule witness to a matter unless evidence is sufficient to support introduced finding personal knowledge that the witness has of the matter. Thus, agree we must with the Board that the record is devoid substantial evidence to long-term workplace. Accordingly, we reverse order Commonwealth Court. concurring
Justice NIGRO files a opinion Chief joins. Justice CAPPY concurring opinion.
Justice SAYLOR files a NIGRO, concurring. Justice
I with respectfully disagree majority the that L. Gregory Grier was not competent testify to that he observed materials that he to working believed be when he was at Appellant Armco & Alloy Stainless Products’ Pittsburgh and Bridgeville plants steel with Patrie As majority Gibson.1 the notes, according evidence, to the rules a compe witness is testify to tent about of which has personal matters he knowl edge addition, or firsthand experience. See Pa.R.E. 602. In may “testimony in form witnesses offer or opinions inferences rationally which are based on the perception witness, helpful [obtaining] a clear understanding issue, witness’ the determination of fact in and scientific, technical, not based on specialized other knowl edge within the scope Rule 702.” Pa.R.E. 701. Finally, we must that always keep mind do rules evidence not. strictly need to be applied compensation workers’ proceed rather, ings, but “all relevant of reasonably probative 505; may § value be received.” 2 see Pa.C.S. also Rox Coal Notably, Appellant has never contended that Mr. Grier was not competent testify regarding Mr. Gibson's to asbestos. Thus, questionable considering it is whether this Court even should be Nevertheless, majority this issue. because addresses it and comes disagree, compelled to a with speak conclusion which I I feel on this issue. 488 (Snizaski), Bd. 570 Appeal Compensation
Co. Workers’ (2002); Brands, Pa.60, Inc. v. A.2d Nabisco (Tropello), Bd. Compensation Appeal Workers’ (Pa.Cmwlth.2000). case, fact to be In instant material decided Mr. compensation judge was whether Gibson workers’ in Appel- material when he worked been exposed To plants. establish Pittsburgh Bridgeville lant’s steel fact, testimony. Mr. presented deposition this Grier’s Claimant working Appellant’s was Mr. testified that when he Grier and 1987 plant approximately 1981 Pittsburgh steel between 32a, 34a. on a basis. R.R. He daily he saw Mr. Gibson See time Mr. Gibson during further this he observed stated heavy, dusty, cotton-type working gray, dark plant, pipes and steam he material on water 39a-44a. Mr. Finally, asbestos. See id. at Grier believed was Appellants’ Bridge- after at testified that he started 1980s, joined late Mr. crew plant ville Gibson steel they dusty around a dark insula- again gray worked at id. 46a- tion he believed be asbestos. See material 51a. view, my clearly competent testify
In Mr. Mr. to the above materials because about Gibson’s knowledge and personal on his such was based Moreover, I that Mr. Grier was believe experiences. firsthand con to' believed that the materials competent testify he a rational plainly such tained asbestos because belief,was which, materials, on his as he one based observations *16 for gray, dusty, were dark and used insulation. See explained, Co., Corp. Lumber Products Pa.Su Camp Construction (1983) 937, 941 Gay compe witnesses were per. opinions regarding piece their fitness express tent rationally based what opinions of wood because their were observed). I Mr. could not acknowledge that they While on his the materials as asbestos based definitively identify I do not such a fact knowledge, and believe that experiences inadmissible, particu testimony incompetent renders his the rules of larly compensation hearing a workers’ where Rather, Mr. Grier’s my opinion, are relaxed. evidence was as asbestos the materials conclusively identify inability on cross-examination explore for Appellant an area simply credibility Mr. Grier’s assessing judge weigh for the presented. of the sufficiency evidence ultimately, that Mr. Grier’s majority with the disagree I therefore Nevertheless, majority, I like the was inadmissible. case, including in the presented find that the evidence would that Grier, to establish was insufficient testimony of Mr. for when he worked to asbestos exposed was Mr. Gibson who offered testi- Indeed, two witnesses only Appellant. to asbestos were possible Mr. mony about Gibson’s M.D., those Laman, and neither and David Mr. Grier Mr. was ex- testify that Gibson conclusively could witnesses Appellant. for working while to asbestos materials posed Mr. above, that Mr. Grier testified as noted Specifically, asbes- thought contained with material he worked Gibson the material tos, to confirm whether but he was unable Laman although Dr. Similarly, actually contained asbestos. of his cancer was result lung that Mr. Gibson’s opined admitted for he Appellant, while was Mr. Gibson for certain whether that he did know these such times. Under during to asbestos exposed indeed ultimate circumstances, majority’s I with the agree must support insufficient to was conclusion work- to asbestos while exposed that Mr. finding Gibson Bd. v. Labor Relations Pennsylvania ing Appellant. See (1957) (to Co., 173, 130 A.2d 388 Pa. Elk Motor Sales evidence, more must do substantial the evidence constitute fact to be of the existence suspicion than “create established”). joins. CAPPY
Chief Justice SAYLOR, concurring.
Justice
particular
that the record
this
majority
I
with the
agree
not contain substantial evidence
does
case
continuous
longstanding
Decedent
WCJ’s
*17
exposure to
asbestos while
I
Employer.
am not
averse, however, to the Commonwealth Court’s
approach
treating
exposure
one,
issue
a factual
or to its flexible
application
the substantial
regard.
evidence standard
this
(Armco
v.
Products),
See Gibson WCAB
Alloy
Stainless &
No.
2002,
(Pa.Cmwlth.
at_,
op.
8,
C.D.