T. McKeen Chidsey, Attorney General, Ralph H. Behney, General Counsel, Harrisburg, Samuel Torchia, Assistant Counsel, Philadelphia, M. Leon Tolochko, Legal Assistant, Pittsburgh, for the Commonwealth.
Robert H. Strub, Pittsburgh, Joseph C. Spriggs, Washington, William A. Challener, Jr., Challener & Challener, Pittsburgh, for Jones & Laughlin Steel Corporation.
Samuel Krimsly, Pittsburgh, for appellee.
Before Rhodes, P. J., and Reno, Dithrich, Ross, and Fine, JJ.
[ 166 Pa. Super. Page 143]
In this occupational disease case two facts were incontrovertibly established: first, claimant's husband died of lobar pneumonia; and second, he had been exposed to a silica hazard and had contracted silicosis. The compensation authorities were required to decide whether his death was 'caused primarily (as definitely distinguished from a contributory or accelerating cause) by silicosis,' within the meaning of the Act of July 2, 1937, P.L.2714, § 5(b), 77 P.S. § 1105. Twice the referee disallowed the claim. In the first instance the board vacated his order and appointed an impartial physician. On the second appeal the board reversed the referee, found that 'the immediate cause of death was lobar pneumonia but that the primary cause of death was
[ 166 Pa. Super. Page 144]
third stage silicosis,' and awarded compensation. The court below affirmed. The employer and the Commonwealth appealed. In this Court the question is whether the finding of the board is supported by substantial competent evidence.
There is virtually no dispute about the basic facts. Mr. Safin had been employed as a motor operator and coal loader in the employer's mines since 1914 and was there exposed to a silica hazard. About three years before his death he developed a cough and shortness of breath, but he continued at work until March 31, 1939. Two days later he became ill, and on April 10, 1939, his attending physician sent him to a hospital 'with the diagnosis that he was developing pneumonia.' He died April 20, 1939, and the immediate cause was pneumonia. An autopsy revealed the silicosis.
The conflicts occurred in the medical testimony. Four physicians, including one called by claimant and also the impartial expert, testified that the primary cause of death was pneumonia with the silicosis a contributory factor. Dr. C. Howard Marcy, the impartial physician, testified that the type of pneumonia which attacked the deceased 'is a specific infection and is not definitely related to silicosis. There is no reliable medical information that silicosis per se produces any susceptibility to pneumonia.'
For the claimant Doctors Fetterhoff and Alpern testified that silicosis was the primary cause of the death, and the board, resolving the conflict, accepted parts of their testimony. Their testimony, however, is open to the same critical objection which this Court made to the medical witnesses in Stauffer v. Hubley Mfg. Co., 151 Pa. Super. 322, 324, 30 A.2d 370, 372, (allocatur refused, 151 Pa. Super. xxiii): 'But a ...