# Gibson v. Workers' Compensation Appeal Board > Supreme Court of Pennsylvania · November 22, 2004 · 580 Pa. 470 URL: https://www.frixlaw.com/law-library/cases/9766639 ## Case - **Full name:** Patric GIBSON, C/O Kathy J. Gibson, v. WORKERS’ COMPENSATION APPEAL BOARD (ARMCO STAINLESS & ALLOY PRODUCTS), Appeal of Armco Stainless & Alloy Products - **Court:** Supreme Court of Pennsylvania - **Decided:** November 22, 2004 - **Citations:** 580 Pa. 470; 861 A.2d 938; 2004 Pa. LEXIS 2842 - **Precedential status:** Published - **Opinion:** Concurrence by Nigro - **Judges:** Cappy, Castille, Nigro, Newman, Saylor, Eakin, Baer - **Cited by:** 53 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9766639 ## How later opinions describe it (automated extraction) - stating that the Pennsylvania rule of evidence pertaining to lay person testimony “contemplates admission of lay opinions rationally based on personal knowledge that are helpful to the trier of fact. At common law, witnesses not qualifying as experts were generally permitted t… - holding that lay opinion testimony on the technical subject of asbestos in the workplace was inadmissible, when the witness failed to demonstrate sufficient personal experience or technical knowledge to qualify him to offer an opinion - concluding that witness’s testimony that he “believed” a substance was asbestos was insufficient to establish that asbestos existed in the workplace. - holding that Rule 701 contemplates admission of lay opinions based on personal knowledge and which are helpful to the trier of fact - holding that to be competent and admissible, a witness’s testimony must be based on their first-hand knowledge ## Opinion text Justice NIGRO, concurring. I respectfully disagree with the majority that Gregory L. Grier was not competent to testify that he observed materials that he believed to be asbestos when he was working at Appellant Armco Stainless & Alloy Products’ Pittsburgh and Bridgeville steel plants with Patrie Gibson. 1 As the majority notes, according to the rules of evidence, a witness is competent to testify about matters of which he has personal knowledge or firsthand experience. See Pa.R.E. 602. In addition, lay witnesses may offer “testimony in the form of opinions or inferences which are rationally based on the perception of the witness, helpful to [obtaining] a clear understanding of the witness’ testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Pa.R.E. 701. Finally, we must always keep in mind that the rules of evidence do not. need to be strictly applied in workers’ compensation proceedings, but rather, “all relevant evidence of reasonably probative value may be received.” 2 Pa.C.S. § 505; see also Rox Coal *488 Co. v. Workers’ Compensation Appeal Bd. (Snizaski), 570 Pa.60, 807 A.2d 906, 915 (2002); Nabisco Brands, Inc. v. Workers’ Compensation Appeal Bd. (Tropello), 763 A.2d 555, 559 (Pa.Cmwlth.2000). In the instant case, a material fact to be decided by the workers’ compensation judge was whether Mr. Gibson had been exposed to asbestos material when he worked in Appellant’s Pittsburgh and Bridgeville steel plants. To establish this fact, Claimant presented Mr. Grier’s deposition testimony. Mr. Grier testified that when he was working in Appellant’s Pittsburgh steel plant between approximately 1981 and 1987 he saw Mr. Gibson on a daily basis. See R.R. 32a, 34a. He further stated that during this time he observed Mr. Gibson working with a dark gray, heavy, dusty, and cotton-type material on the water and steam pipes in the plant, which he believed was asbestos. See id. at 39a-44a. Finally, Mr. Grier testified that after he started working at Appellants’ Bridge-ville steel plant in the late 1980s, Mr. Gibson joined his crew and again they worked around a dark gray and dusty insulation material that he believed to be asbestos. See id. at 46a-51a. In my view, Mr. Grier was clearly competent to testify about Mr. Gibson’s exposure to the above materials because such testimony was based on his personal knowledge and firsthand experiences. Moreover, I believe that Mr. Grier was competent to' testify that he believed that the materials contained asbestos because such a belief,was plainly a rational one based on his observations of the materials, which, as he explained, were dark gray, dusty, and used for insulation. See Camp Construction Corp. v. Lumber Products Co., 311 Pa.Super. 381 , 457 A.2d 937, 941 (1983) Gay witnesses were competent to express their opinions regarding the fitness of a piece of wood because their opinions were rationally based on what they observed). While I acknowledge that Mr. Grier could not definitively identify the materials as asbestos based on his experiences and knowledge, I do not believe that such a fact renders his testimony incompetent and inadmissible, particularly in a workers’ compensation hearing where the rules of *489 evidence are relaxed. Rather, in my opinion, Mr. Grier’s inability to conclusively identify the materials as asbestos was simply an area for Appellant to explore on cross-examination and for the judge to weigh in assessing Mr. Grier’s credibility and ultimately, the sufficiency of the evidence presented. I therefore disagree with the majority that Mr. Grier’s testimony was inadmissible. Nevertheless, like the majority, I would find that the evidence presented in the case, including the testimony of Mr. Grier, was insufficient to establish that Mr. Gibson was exposed to asbestos when he worked for Appellant. Indeed, the only two witnesses who offered testimony about Mr. Gibson’s possible exposure to asbestos were Mr. Grier and David Laman, M.D., and neither of those witnesses could conclusively testify that Mr. Gibson was exposed to asbestos materials while working for Appellant. Specifically, as noted above, Mr. Grier testified that Mr. Gibson worked with material that he thought contained asbestos, but he was unable to confirm whether the material actually contained asbestos. Similarly, although Dr. Laman opined that Mr. Gibson’s lung cancer was a result of his exposure to asbestos while working for Appellant, he admitted that he did not know for certain whether Mr. Gibson was indeed exposed to asbestos during such times. Under these circumstances, I must agree with the majority’s ultimate conclusion that the evidence was insufficient to support a finding that Mr. Gibson was exposed to asbestos while working for Appellant. See Pennsylvania Labor Relations Bd. v. Elk Motor Sales Co., 388 Pa. 173 , 130 A.2d 501, 505 (1957) (to constitute substantial evidence, the evidence must do more than “create a suspicion of the existence of the fact to be established”). Chief Justice CAPPY joins. . Notably, Appellant has never contended that Mr. Grier was not competent to testify regarding Mr. Gibson's exposure to asbestos. Thus, it is questionable whether this Court should even be considering this issue. Nevertheless, because the majority addresses it and comes to a conclusion with which I disagree, I feel compelled to speak on this issue. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9766639. Public record. Not legal advice.