*1
Mr. Justice Boberts and Mr Justice Manderino join this dissenting opinion. Appellants, Mfg.
Utter et v. Asten-Hill al., Co. G. J., Before Jones, Eagen, 1973. May Argued Pomeroy JJ. Manderino, Roberts, O’Brien, *2 Furlong, V. Joseph & Smith Jr., Tabas, with him for appellants, Furlong, appel- for Oilman, McElvenny Joyce
John F. lees. Attorney Gen- Special Assistant Levin, E.
Stephen appellee. Fund, Insurance for State Workmen’s eral, Opinion Jones, September Justice Mb. Chief 1973: separate which appeal cases three
This
involves
in-
Each case
court below.
were consolidated
questions
and law.
of fact
basic
volves
same
Bambrick,
Cecil
Eobert Utter and
The decedents,
Manufacturing
employees of the Asten-Hill
were both
involve
Company
cases
The Utter
[“Asten-Hill”].
during
disability by
lifetime
his
for
the decedent
claim
Both
dependency
widow.
and claim
Pennsylvania
brought pursuant
Oc-
were
claims
*3
L.
cupational
586,
P.
Act of
21, 1.939,
Disease
June
In the
§§1201-1603.
P.S.
amended,
as
§§101-503,
by
represented
the State
Asten-Hill
cases,
Utter
in-
Bambrick case
Fund. The
Insurance
Workmen’s
by
dependency benefits
the Act for
claim under
volves a
Asten-
connection,
In this
widow.
Bambrick’s
Cecil
Pennsylvania
by
represented
Manufacturers’
Hill is
Company.
Insurance
Association
compensation by
originated as awards of
These cases
by the
Each award was affirmed
below.
the referees
deci-
Board
the Board’s
upheld
of
of
the Court
Common Pleas
were
sions
(5
Philadelphia. The Commonwealth Court reversed
opin-
(1972);
The August to 14, 1946, a 10, 1966, from October Hill made weaver the manufacture of felts dryer engaged from On Mr. Utter filed asbestos. September 26, 1966, a claim for that he was suffer- compensation alleging from and had become disabled. ing totally asbestosis1 He on died at February 25, 1967, age forty-four, before the on his disability initial We hearing petition. with the decision of the Common- agree preliminarily on wealth Court that there no evidence on the record to that Robert totally which base Utter was finding disabled to his death. 5 Pa. Ct. at prior 291 A. 2d at to the claim of 355. With Robert the Common- Utter, therefore, judgment wealth Court is affirmed and the claim decedent’s peti- tion for is dismissed. The bene- disability dependency Margaret presents fits claim Utter different ques- tion and is considered with the claim opinion of Alice widow Cecil Bambrick. Bambrick, Bambrick was Asten-Hill from employed by
Cecil 1950 October 1962. This September decedent, like Robert was as a From employed weaver. Utter, from date of Asten-Hill departure his until date of his death Mr. Bambrick September 11, 1966, which did not employment was engaged present of asbestos referee exposure. hazard concluded that death carcinoma of the cause lungs asbestos exposure. must note that
Initially we is not the prerogative the court the appellate of either below court to usurp privilege fact finding Workmen’s Compensa findings Board. The Board’s should if prevail there them. sustain Follmer Truck- competent *4 1 pneumoconiosis resulting is a “Asbestosis from the inhalation magnesium (hydrated form). fiber dust silicate in of asbestos fibrous pulmonary fibrosis, diffuse alveolar characterized It presence bodies’.” 5 of ‘asbestos Pa. Ct. at Quoting Gordy-Gray, Attorneys' 4a at A. 2d 291 TextdooJc (3d 1970). Medicine, Ed. ¶2050.01
405 v. Pa. A. 2d 1 ing Stump, Commonwealth Ct. State Insurance Fund v. (1972); Young, Pa. A. Commonwealth Ct. 2d 552 Our (1971). inquiry must limited to the question whether of fact findings conclusions. support Board’s Section of the Act for dis- 310(e) provides or ability death caused asbestosis.2 At the time its application these de- proceedings, 108(1) fined asbestosis aas specifically compensable occupa- tional disease:
“The term ‘occupational as used disease,’ act, shall mean only the following
“(1) Asbestosis any direct occupation involving contact or with, handling exposure the dust of as- of, bestos.” 77 P.S. §1208(1). A (Emphasis added) si- multaneous reading Sections 310(e) and 108(1) one permits only conclusion: the legislature intended compensate disability death caused asbestosis. In this legislative context, appellants have offered to show that tending each of the decedents died of carcinoma of the lung caused by exposure to as- bestos. With to the death of Robert Utter, ap- medical pellants’ expert testified as follows: “In my there can be opinion little doubt very that Mr. Utter’s death was due to causally related to asbes- tos exposure. (Emphasis added).” Medical testimony the death of Cecil Bambrick respecting reached the conclusion: “Ear from same any feel uncertainty, very Mr. confident Bambrick died of a carcinoma of the consequent asbestos upon exposure. (Emphasis we added).” Though have scrutinized the record, we can no evidentiary find support conclusion that 2 “Compensation payable, provided shall be as otherwise in this disability act, or death for total caused . .. asbestosis ....'’ (e). §1401 77 P.S. *5 406 from cancer caused asbestosis.3
decedents expired and Because compensable, death caused asbestosis is favor- in a most light because the evidence as construed that cause of death able indicates appellants to as- in each cancer caused by exposure instance was under bestos, the to these claimants Sections awards are 310(e) and act 108(1) unsupported evidence.4 that is argument second part ajipellants’ here the provisions
death benefits should be under paid (n) February 1956, of Section added 28, act, L. P. (1955) 1095, §1: act, term as used disease,’
“The ‘occupational shall mean diseases: only following All other to which
“(n) (1) diseases occupational the claimant reason exposed employment, or to the (2) industry occupa- and which are peculiar not which are common to the general tion, (3) popu- already testimony lation.” We have considered expert judicial a as Nor we take notice of connection between can present knowledge does bestosis and cancer. The state medical permit assumption: “A number have not such an of British authors significantly greater lung- incidence of done studies which show among popula than is found in the cancer asbestos workers balance, among people died silicosis. the litera or who On suspicion appear that of a to indicate correlation ture would dismissed, eannot but that between asbestosis lacking to make such correlation definitive.” sufficient Medicine, (3d Gordy-Gray, Attorneys’ Ed. ¶2050.34 Textbook of 4a 1970). 2478, 108(1) House Bill No. October amended that now reads follows: June so effective act, disease,’ ‘occupational as used in this mean shall “The term following only diseases: with, resulting “(1) and cancer direct contact Asbestosis any occupation exposure handling of, of asbestos dust or exposure. [Emphasis contact, handling involving added].” such indicating Robert Bambrick died Utter and Cecil causally exposure. carcinoma related to asbestos evidentiary (n) The first criterion under Section 108 exposed thus satisfied: the to an asbes- decedents were tos hazard which the Workmen’s Board *6 lung and the court can- below determined caused their ultimately cers, their deaths. “occupational
The second and third elements an (n) present disease” as defined Section 108 two sides inquiry: lung peculiar of the same cancer to dece- occupation public? dents’ or is it commonto the Appellants argue distinguishing the charac- lung teristic in cancer this context is its cause. That although lung commonly is, cancer occurs in individuals particular who are not abestos these decedents workers, occupational were the victims of a com- diseases because monly occurring occupationally disorder was caused. support appellants of this thesis, recount ex- pert testimony which indicates that the characteristics peculiarity of the decedents’ disorders reveal a associat- lung ed with cancer in asbestos workers not associated typical gen- with the manifestations of cancer in [expert eral: “Dr. Selikoff witness for the claimants]: Lung general in has certain characteristics and type I anyone don’t refer to the cell which can of a including aquamous number adeno carcinoma, cell car- eat cinoma, cell carcinoma, undifferentiated carcinoma tendency plus many parts etc., its in metastasize body, plus plus invasive and often fatal nature, symptoms coughing its clinical such as blood etc., but general has the characteristic in occurring It in large trachea, bronchi, main bronchus and the the main bronchi mar bronchus on either side. It is generally Q. a main bronchus tumor. Excuse me doc- just my thinking clear own here. tor, talking You’re general? in A. In about cancer not related to general. in And that’s one of asbestos, why reasons you frequently on the overall fatal as know it’s so it’s cure more than when don’t think we because 5% you just go enough to remove the main bronchi can’t far many completely trachea and when it hits the cases just lungs. you There is or can’t remove the carina two peculiarity about with asbes- cancer associated typically periph- exposure tos in that it occurs however, added) erally part lung (Emphasis in the outer .” periph- That Robert cancer manifested itself Utter’s lungs x-rays, erally hospital as ex- in his is indicated placed “I Dr. have amined and testified to Selikoff: July x-rays at the box two dated the out Hospital Episcopal the name of Robert C. Utter. with posteri- day one Both taken on the same but taken in projection the other in the lateral anterior taken projection. significant The films abnormali- have two abnormality appearance is the a mask ties. The first peripherally lesion nodular outline located rather upper right seen on the lobe and well also lateral *7 beautifully projection. peripheral Its nature is demon- lung structures, clear strated between the hilar in words, bronchi other and the lesion central itself. similarly projection demonstrated the lateral This is again area the main bronchi seemed to be several where away peripheral neoplasm, from inches this lesion.” added) (Emphasis carcinoma in Cecil Bambrick’s according lungs, peripherally to Selikoff, Dr. also was following testimony Dr. Selikoff offered located. hospitali- of Mr. to the records with Bambrick’s report to “I was interested read zation: Dr. Fite’s interpretation about lohen he talks his historical find- ings. epidermoid that He talks about the it’s an fact way saying aquamus is which another carcinoma car- peripheral he was struck cinoma, location, but he says lung parenchyma peripheral in the location is atypical primary lung a carcinoma somewhat for assumption epidermoid that no on the other however, body parts been carcinoma has identified other primary palmonary may nature of as- this lesion saying In sumed. other words what Dr. Fite is that is am,awfully place lung is there unusual cancer. coming it been Could have this somewhere else, very ordinary lung is unusual for an it is. cancer and the, lung Most usual are central in location, cancers lung usually peripheral the asbestos cancers lo- are .in may although they cation assume different that forms significant.” (Emphasis added) location is Appellees argue that Scott v. Steel, United States Superior (1964), Pa. Ct. 201 A. 2d dis- positive may of the issue of whether these re- claimants (n). cover under Section 108 the claimant Scott, employed by-products as a laborer the coal tar division of United States Steel. When the claimant be- totally lung eventually came disabled from cancer, brought his died, widow claim for death un- (n) Superior der Section 108 the act. The af- Court firmed the decision of the Workmen’s denying language bearing upon Board the claim, and in expressed quality the decision here, its view about the necessary of to sustain a claim under (n) proof [§108(n) '| : “The burden of under is a heavy prove [The one. claimant] must that the dis- case, is a ease, cancer, hazard of em- ployment exposed and that he was it; cancer is peculiar industry occupa- a disease which is to the not common pub- and that tion; judicial lic. ... must take We notice of the fact that peculiar industry not cancer is to this and that it general public. might just to the common We *8 say exposed, claimant that this in well this indus- very might try, he well to the be, as common cold and industry peculiar to the that it is and not common to Superior public.” general 203 Pa. Ct. at 244. A. at2d recovery Superior that Scott
The concluded Court 108(n) because not be sustained under could Section industry un- peculiar nor cancer neither to the steel is public. underpinnings of general common in the by upon urged position us the Scott and decision, legislature appellees intended Sec- that is here, discovery only (n) apply of new dis- tion 108 occupations. having genesis their in the claimants’ eases severely interpretation of Sec- This limits usefulness 108(n) compensation in situations as vehicle though diseases, fatal like where the decedent’s this one are nonetheless enumerated in the act, not elsewhere generated by occupational A more reasoned an hazard. (n), adopt analysis one we and which Section occupational setting, an dis- is cancer can be that may public, though if it in the exists ease, by competent that a shown claimant’s by occupation peculiar causes to the claimant’s Our review and characteristics its manifestation. appellants of this record that have shown indicates competent fatali- that the decedents’ medical evidence “occupational term were caused diseases” ties (n) Occupational Dis- is defined eases Act. respect to the claim of Robert the Com- Utter,
With and monwealth Court is affirmed the decedent’s claim petition dismissed. With to the death bene- Margaret Utter and Alice fits claims Bambrick, and the Court reversed awards of the Compensation Board are reinstated. part no Nix took the consideration Mr. Justice of this case. decision Dissenting Opinion
Concurring Mr. Jus- tice Roberts: compensation my all the benefits, both the view Bambrick awarded cases, referee, Utter
411 adopted by Compensation Board, tbe Workmen’s affirmed Pleas of Philadel Court Common phia fully findings supported are the record. These compensation fact authorities are correct govern disposition should Bamb these cases. See Mfg. rick Co., v. Asten-Hill 5 Pa. Ct. Commonwealth (1972) 664, A. 2d dis J., (Kramer, senting, joined by J.). Crumlish, agree only portion I therefore of the ma- with jority’s mandate which reverses Court’s order and reinst ates the Board’s do- award. ing accept majority’s I do not so, construction 108(1) (e) Pennsylvania sections and 301 of The Oc- cupational Act of Disease June P. L. 21, 1939, §§108(1), 301(e), §§1208(1), as P.S. amended, (e) 1952). majority’s disposition depen- The dency Margaret benefit Utter claims of and Alice Barn- solely upon interpretation brick can rest of Section 1208(n), Pennsylvania Occupational Disease Act, February (1955) Act amended, P. L. 28, 1956, (n) (Supp. 1973). By §1208 77 P.S. §1, constru- ing (1) (e), majority sections 108 and 301 decides an need issue it not reach. majority’s
I dissent from the refusal to reverse the Commonwealth Court’s denial of the benefits awarded compensation authorities. would reinstate the compensa- Board’s award of disability suffered decedent, Robert during his lifetime. Utter,
Mr. joins Justice Mandhrino in this concurring and opinion. dissenting