OPINION BY JUDGE CRUMLISH, JR., June 15, 1972:
This appeal stems from a denial by the Workmen's Compensation Board of a claim for compensation benefits filed by Alfred E. Billet, now deceased.
Claimant had been employed at Keystone Roofing Manufacturing Company for nineteen years up until July 31, 1966. On August 8, 1967 he filed a claim petition under the Pennsylvania Occupational Disease Act
After hearings, the referee disallowed compensation finding that asbestosis was not peculiar to the industry in which claimant was employed nor to claimant's occupation therein, and that claimant did not suffer from asbestosis but from emphysema.
The Board reviewed the record and, after altering the findings of fact somewhat, agreed with the conclusion of the referee and dismissed the appeal. On appeal, the Court of Common Pleas of York County affirmed the decision of the Board and dismissed the appeal. The matter is now before us.
In reviewing a decision by the Board that is adverse to the claimant, this Court must determine whether there has been a capricious disregard of evidence and
We are of the opinion that the claimant here has not met the burden of proving that he was employed in an occupation or industry in which asbestosis was a hazard or that he even died of asbestosis. For that reason, the opinion of the lower court must be affirmed. We realize that the occupational disease law is to be liberally construed but we also realize that we may not disregard its plain statutory meaning and language. Herman v. Kandrat Coal Co., 205 Pa.Super. 117, 208 A.2d 51 (1965); Porter v. Sterling Supply Co., 203 Pa.Super. 138, 199 A.2d 525 (1964).
As recognized by the lower court, the claimant could have established an asbestosis hazard either by showing that the industry or occupation in which he was employed was one in which asbestosis was a hazard, or by showing that the defendant's plant was a hazard. If claimant had met this burden, the presumption of Section 301(f) of the Act would have surfaced. It provides: "If it be shown that the employe, at or immediately before the date of disability, was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed that the employe's occupational disease arose out of and in the course of his employment, but this presumption shall not be conclusive." The claimant never proved that the decedent was employed in an "occupation or industry in which the occupational disease is a hazard," and consequently the presumption never arose.
The defendant in this case produced asbestos pipe, felt and slate roofing, shingles, felt and waterproof paper.
There was testimony that the decedent performed maintenance work and repaired machinery and was in the vicinity of the machines where those products were being manufactured "practically all the time." There was also testimony by other workers that the building was dusty.
The Board considered this evidence but it also considered evidence to the effect that the claimant only occasionally passed or repaired the asbestos machines; that none of the defendant's other employes contracted asbestosis; that claimant's authority, who opined that claimant worked in an asbestosis hazard, based this conclusion upon statements made to him by the claimant; that this authority never visited the plant; and finally that no tests were ever conducted in the plant to determine if asbestos fibers were present in the air. Under these circumstances, it was not a capricious disregard of evidence to conclude that defendant's plant was not in itself a hazard.
The Board's finding that claimant failed to meet the burden of proving disability due to asbestosis was likewise not a capricious disregard of evidence. On this point, conflicting testimony was produced. Two doctors testifying on behalf of the claimant stated that they thought claimant suffered from asbestosis. Defendant's expert testified that there was no evidence of asbestosis upon personal examination or in claimant's x-rays. Because of this conflict, an impartial expert was appointed who concluded on the basis of x-rays
Under these circumstances, there was at least doubt as to the cause of the disability and in any event the claimant had not met the burden of proving total disability due to asbestosis. The Board, in so finding, did not capriciously disregard competent evidence.
For the foregoing reasons, the lower court is affirmed.