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Announcing a new standard for the admission of lay opinion testimony concerning technical evidence in workers’ comp cases, the Pennsylvania Supreme Court has called for certain rules of evidence to be applied in administrative agency proceedings. Reversing the Commonwealth Court’s decision in Gibson v. Workers’ Compensation Appeal Board, the court held that Pennsylvania Rules of Evidence 602, 701 and 702 “are applicable to agency proceedings in general, including workers’ compensation proceedings.” The rules in question address witness competency and the extents to which expert and non-expert testimony should be limited. But two separate concurring opinions — one filed by Justice Russell M. Nigro, who was joined by Chief Justice Ralph J. Cappy; the other filed by Justice Thomas G. Saylor — featured arguments against introducing such rules of evidence into the arena of agency proceedings. The majority in Gibson acknowledged that Pennsylvania’s Administrative Agency Law specifically states that commonwealth agencies “shall not be bound by technical rules of evidence at agency hearings.” “This statutory maxim has been correctly interpreted to mandate a relaxation of the strict rules of evidence in hearings and proceedings, such as those held by a [workers' comp judge],” Justice Sandra Schultz Newman wrote. “However, within the administrative forum there has not been a total abandonment of all rules of evidence.” Newman was joined by Justices Ronald D. Castille, J. Michael Eakin and Max Baer. Attorneys who focus on workers’ comp cases say the decision will have significant impact in their practice area. Samuel Pond, of Martin Banks Pond Lehocky & Wilson in Philadelphia, called the ruling a “significant event because historically, the commonwealth’s administrative law agencies have not been bound by the technical rules of evidence.” “This is changing the landscape,” Pond said. Patric Gibson, who died of lung cancer in October 1994, had worked for the maintenance department in the Pittsburgh and Bridgeville, Pa. steel plants owned by Armco Stainless & Alloy Products, according to the opinion. He had also been a pack-a-day cigarette smoker. Gibson’s widow filed suit, alleging her husband died as a result of exposure to numerous harmful substances, including asbestos. The death certificate for Gibson contained no mention of asbestosis or any asbestos-related disease, according to the opinion. At a hearing before a WCJ, an expert medical witness for Gibson testified that nothing in the medical records indicated any asbestos exposure. But Gregory Grier, who had also been employed by Armco, told the WCJ that when working at the Pittsburgh plant at the same time as Gibson, he had seen a dark-gray, cotton-like material — that he assumed to be asbestos — falling off water piping connected to the facility’s furnace, according to the opinion. The WCJ found that Gibson’s asbestosis had been a significant contributing factor to his lung cancer and death, according to the opinion. The WCAB reversed that decision; the Commonwealth Court sided with the WCJ in a 4-3 holding. The majority sought to differentiate Gibson from Witco-Kendall Co. v. Workers’ Compensation Appeal Board, the 1989 Commonwealth Court decision relied on by the lower court’s majority in reaching its decision in Gibson The main issue in Witco-Kendall had been the timeliness of the claimant’s petition, and the necessity of expert testimony had only been a subissue, Newman wrote. In addition, the employer in that case had admitted that asbestos had been present in its plant at some point in its history, something that had not occurred in Gibson. Rule 701, according to Newman’s opinion, calls for testimony from non-expert witnesses to be limited to “those opinions or inferences which are rationally based on the perception of the witness.” “Although [Pennsylvania's] Workers’ Compensation Act provides for a relaxation of the rules of evidence, this relaxation cannot include permitting an untrained person to identify a workplace substance without personal knowledge or specialized training,” Newman wrote, adding later, “Relying on cross-examination to expose the weaknesses of lay opinion testimony does not suffice to erase the error of improperly admitted evidence.” Rules 602, 701 and 702 are applicable in agency proceedings, the majority concluded. In his concurring opinion, Nigro agreed that there was insufficient evidence as to Gibson’s exposure to asbestos, but argued that Armco employee Grier had been competent to testify. “We must always keep in mind that the rules of evidence do not need to be strictly applied in workers’ compensation proceedings,” Nigro wrote. Grier’s inability to positively identify the material he spoke of as asbestos should not have rendered his testimony inadmissible, Nigro wrote. Saylor wrote in his concurring opinion that he is “not averse … to the Commonwealth Court’s approach of treating the exposure issue as a factual one, or to its flexible application of the substantial evidence standard in this regard.” “Such [an] approach is consistent with [the] prevalence of the use of asbestos in certain industries, as well as the inherent difficulties of proving the presence of asbestos, which most industries have long since remediated,” Saylor wrote. But Saylor agreed that the WCJ’s finding in the matter had not been supported by substantial evidence. Pond said that the court’s decision would force all workers’ comp practitioners to “dot our I’s and cross our T’s better.” A higher evidentiary standard at the agency proceedings level would create the need for more in-depth investigations before presenting a claim to a WCJ or the WCAB, he said. “We’re going to have to do a better job of getting the material list to see what chemicals and materials were on that site, and then having a materials expert or industrial hygienist testify, similar to what you would need to do in a civil jury case,” Pond said. Armco’s attorney, Albert Lee of Bechtol & Lee in Pittsburgh, said that his client was pleased with the decision. He declined to comment further, as aspects of the Gibson matter are still in dispute before the WCAB. Gibson was represented by attorneys from Goldberg Persky Jennings & White in Pittsburgh. Calls to the firm seeking comment were not immediately returned. Pennsylvania Labor & Industry Department spokesman Barry Ciccocioppo said that the department is reviewing the opinion.

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