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Baptiste v. Workers' Compensation Appeal Board12/7/2005
A petition has been filed on behalf of Thomas Baptiste, deceased, and his widow Linda Baptiste (Petitioners) seeking review of the order of the Workers' Compensation Appeal Board (Board) that affirmed in part and reversed in part the order of Workers' Compensation Judge (WCJ) Eric Jones. The Board held that Baptiste and his widow had failed to prove which employer was the last employer responsible for Baptiste's exposure to an occupational hazard, and it granted the appeal of Eichleay Corporation from WCJ Jones' decision holding it responsible.
The questions presented in this appeal are stated separately, although argued together. They are whether Baptiste met his burden to show that he sustained mixed dust pneumoconiosis as a result of his total and cumulative exposure to coal dust, welding fumes, asbestos, silica and other pollutants while working as a millwright for twenty-seven years for all of the named defendants; whether the Board misinterpreted Baptiste's correct burden of proof to show that he had contracted a disabling occupational disease; and whether the Board improperly substituted its own credibility determinations for those of the first WCJ.
I.
At a February 1995 hearing before WCJ Robert Steiner, Baptiste testified that he worked for twenty-seven years as a millwright, working out of a union hall for multiple employers. As a millwright he erected motors, repaired gear boxes and cranes or anything that was mechanical, and he did a lot of climbing, heavy lifting and sledgehammer work. He welded and burned (on virtually every job in which he was involved) and used a plasma machine to cut stainless steel, which exposed him to fumes and to dust. Also he was exposed at times to silica and asbestos, especially when making gaskets from a material that contained asbestos, and he worked in power plants, steel mills, chemical plants and oil refineries. He last worked August 24, 1993 for Minnotte at Midland Steel, working thirteen hours that night. The workers had to vacate the building because trouble with exhaust fans in the melt shop led to a buildup of gases. Baptiste was ill all night after that, and he had not worked as a millwright since.
Dr. Macy Levine, board-certified in internal medicine and allergy, examined Baptiste and reviewed x-rays. He diagnosed mixed dust pneumoconiosis and chronic bronchitis due to exposure to all the various dusts to which Baptiste was exposed during his work experience, including coal dust, asbestos and silica (the doctor later retracted the chronic bronchitis attribution if it was true that Baptiste had a significantly greater smoking history). He stated that the incidence of mixed dust pneumoconiosis and chronic bronchitis is substantially greater in people exposed to all these materials than in the general population and that Baptiste's pneumoconiosis made his death from lung cancer occur sooner by compromising his ability to breathe.
Dr. James K. Lanz, board-certified in internal medicine, pulmonary medicine and critical care medicine, first saw Baptiste in May 1995, and after reviewing x-rays and performing other tests he diagnosed interstitial lung disease and a right upper lobe mass that proved to be carcinoma. He stated that but for the underlying lung disease he would have performed surgery. He noted that the incidence of mixed dust pneumoconiosis is substantially greater in Baptiste's occupation than in the general population and testified that he died from lung cancer and pneumoconiosis interstitial lung disease. Dr. Gregory J. Fino performed a records review and testified on behalf of Minnotte. He stated that welding fumes can cause radiographic abnormalities known as arc welders' pneumoconio
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