Bambrick v. Asten Hill Mfg. Co. , 5 Pa. Commw. 664 ( 1972 )

Opinion by

Judge Wilkinson,

We are here concerned with three appeals which arise as a result of claims brought pursuant to Section 310(e) of the Pennsylvania Occupational Disease Act, Act of June 21, 1939, P. L. 566, No. 264, as amended, 77 P.S. §1401(e) which provides that “. . . Compensation shall be payable . . . for total disability or death caused by . . . asbestosis. . . .”

The three claimants, were successful before the referee and were awarded compensation. The defendants, Asten Hill Manufacturing Company, and its insurance carriers, State Workmen’s Insurance Fund and the Pennsylvania Manufacturers’ Association Insurance Company, and the Commonwealth, Department of Labor and Industry, Occupational Disease Division, appealed to the Workmen’s Compensation Board (Board) which affirmed the decision of the referee. Appeals were taken to the Court of Common Pleas of Philadelphia County which affirmed the awards by the Board. These appeals followed.

Our. scope of review where the Board has made awards in favor of the claimants is to determine whether or not there is substantial evidence to support the findings of the Board, giving to the claimant, who has the award, the benefit of the most favorable inferences deducible from the' testimony. DeMascola v. Lancaster, 200 Pa. Superior Ct. 365, 189 A. 2d 333 (1963).

While the three claims are treated separately herein, the occupational disease, asbestosis, the claimants’ medical expert, and the employer, Asten Hill Manufacturing Company, are common to all claims.

Claim of Robert T. Utter

The claimant was employed by the defendant, Asten Hill, in various capacities from October 14, 1946, until August 10, 1966, when he was last employed as a weaver. Asten Hill is engaged in the manufacture of dryer felts from asbestos. On September 26, 1966, the claimant filed a claim petition for compensation alleging that he became totally disabled as a result of asbestosis in June 1966. The defendants by answer denied the allegation. On November 15, 1966, the claimant was hospitalized where he remained until his death on February 25, 1967, at the age of 44 years. The claimant died before the initial hearing was held on his petition.

We have reviewed the record carefully and find that there is no testimony to support a finding that the claimant was totally disabled prior to his death. This is not a case where there is insufficient evidence upon Avhich to base a finding. There is no evidence upon which to base a finding of total disability.

Claim of Margaret R. Utter,

Widow of Robert T. Utter

Following the death of her husband, the claimant filed a fatal claim petition alleging that her husband’s death was caused by asbestosis. The defendants by answer denied the allegation.

In support of her fatal claim petition at the initial hearing, claimant produced the Plant Superintendent of Asten Hill who testified from deceased’s wage and work records. In addition, claimant produced the clerk from the medical records department of the Women’s Medical College Hospital who introduced records and x-ray films of the deceased, as well as the clerk from the medical records department of the Episcopal Hospital who introduced records and x-ray films relating to deceased’s two admissions in 1966 and the autopsy report.

In response to a hypothetical question based upon the records, x-ray films and the autopsy report, claimant’s medical expert never having seen or examined the deceased replied that in his opinion, the deceased had asbestosis. When he was asked if he had an opinion as to whether the death was causally related to asbestosis, he replied: “A. 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)

The difference between the question asked and the response elicited is determinative of this appeal. Asbestos is a collective term used to describe several different varieties of magnesium silicates, each of which has its unique chemical and physical properties, but all of which share in common the unusual quality of being minerals which occur naturally in fibrous form. 5 Gordy-Gray, Attorneys’ Textbook of Medicine, ¶205C.-11 (3d. Ed. 1970). Asbestosis is a clearly definable medical term used to describe a disease. Asbestosis is a pneumoconiosis resulting from the inhalation of asbestos fiber dust (hydrated magnesium silicate in fibrous form). It is characterized by a diffuse pulmonary alveolar fibrosis, and the presence of ‘asbestos bodies’.” 5 Gordy-Gray, Attorneys’ Textbook of Medicine, ¶205C.-01 (3d. Ed. 1970). We would do harm to the reputation of claimant’s medical expert to say that he meant asbestosis when he said asbestos exposure, as well as exceed our judicial prerogative. The General Assembly has limited recovery to death caused by asbestosis, not asbestos exposure. There is insufficient evidence upon which to base a finding of death caused by asbestosis.

Claim of Alice Bambrick,

Widow of Cecil Bambrick

The decedent, Cecil Bambrick, was employed by Asten Hill from September 5, 1950, until October 30, 1962. Tlie decedent was employed in various occupations which, did not involve an asbestos hazard from his leaving Asteo Hill until he entered Germantown Hospital on May 11, 1966, complaining of chest pains. The decedent underwent a lobectomy and a partial chest wall resection for carcinoma and was discharged for home convalescence on June 5, 1966. The deceased was readmitted to the hospital on July 2, 1966, and discharged August 5, 1966. The decedent died on September 11, 1966. The referee found that decedent died as a result of carcinoma of the lungs due to asbestos-caused lung cancer. The record reveals that the decedent died at his home, unattended by a physician. No autopsy was performed and the death certificate gives the cause of death as undetermined.

The records and x-ray films from decedent’s two stays at Germantown Hospital were introduced as a basis for hypothetical questions to be propounded to claimant’s medical expert. The medical expert initially gave his opinion that the decedent had asbestosis. The medical expert was next asked whether in his opinion based on the fact that decedent had died of lung cancer, the decedent’s asbestosis caused the lung cancer which resulted in death. In response, the medical expert stated: “A. Far from any uncertainty, I feel very confident that Mr. Bambrick died of a carcinoma of the lung consequent upon asbestos exposure ” (Emphasis added)

Once again we are faced with insufficient evidence upon which to base a finding that the requirements of the statute have been met. Recovery is limited to death caused by asbestosis, not asbestos exposure.

In addition, there is another reason which bars claimant’s recovery. Hypothetical questions must be based on matters which appear in the record and on facts warranted by the evidence. DeFrank v. Sullivan Trail Coal Co., 425 Pa. 512, 229 A. 2d 899 (1967). The record is devoid of any evidence upon which to base an assertion that decedent died of lung cancer. On cross-examination, the claimant’s medical expert was asked, based on the medical information before him, and making no assumptions as to the cause of death, what caused the decedent’s death. The medical expert replied that he did not know the cause of death, and that for all he knew, decedent could have been crossing the street when hit by a car and killed. Expert medical testimony is entitled to little or no weight when based upon insufficient facts. Commonwealth v. Patskin, 375 Pa. 368, 100 A. 2d 472 (1953). There is insufficient evidence upon which to base a finding that decedent died as a result of asbestosis.

With respect to the claim of Robert T. Utter, the judgment of the lower court is reversed, and the claim petition is dismissed.

With respect to the claim of Margaret R. Utter, the judgment of the court below is reversed, and the fatal claim petition is dismissed.

With respect to the claim of Alice Bambrick, the judgment of the court below is reversed, and the fatal claim petition is dismissed.