E. Mac Troutman, Penrose Hertzler, Pottsville, for appellants.
Thomas L. Kennedy, Jr., Hazleton, Thomas B. Noonan, Mahanoy City, for appellee.
Before Rhodes, P. J., and Ross, Gunther, Wright, Woodside and Ervin, Jj.
Plaintiff claimed compensation for the death of her husband under the Pennsylvania Occupational Disease Act of June 21, 1939, P.L. 566, 77 P.S. § 1201 et seq., then in effect. Her husband Ross Scariato died on May 14, 1951. The claim was for death from anthraco-silicosis under § 301(e) of the Act, which provided for compensation for 'death caused solely (as definitely distinguished from a contributory or accelerating cause) by silicosis, anthraco-silicosis, or asbestosis' or 'when accompanied by active pulmonary tuberculosis.' It was admitted that the decedent had been employed in the anthracite mines of Pennsylvania for more than five years and that he had been exposed to a silica hazard within the Commonwealth for the period contemplated by the statute. He had been in defendant's employ for about a year. The claim was disallowed by both the Referee and the Board; the court on appeal, however, remitted the record to the Board 'for further hearing, reconsideration
and determination.' The order will be reversed.
The Board disallowed the claim on this basic finding of the Referee which it affirmed: 'The decedent died of far advanced active pulmonary tuberculosis. The silicosis in the early first stage which the decedent had, caused no disability and did not contribute to his death.'
At the hearing before the Referee Dr. A. R. Judd an eminent specialist in diseases of the chest was called by claimant. He testified that decedent was admitted to Hamburg Sanitarium of which Dr. Judd was Medical Director, on June 5, 1950 and was under his observation up to the date of death. From a physical examination, aided by a series of x-ray films he found that decedent '* * * had a degree of silicosis, and from the history it was judged to be anthraco-silicosis and active pulmonary tuberculosis of far advanced type.' He found only 'an early first degree silicosis' and couldn't estimate the degree of disability from that source because he hadn't seen '* * * the patient prior to the onset of the tuberculosis, and the course from the tubercular infection was exceedingly rapid.' Dr. Judd gave it as his opinion that 'pulmonary tuberculosis with anthraco-silicosis' was the cause of death. It is unfortunate that a post-Mortem examination was not authorized as requested by Dr. Judd because he stated that without such examination he could not tell the extent of the anthraco-silicotic involvement.
Against the opinion of claimant's medical witness Dr. W. V. Dzurek, a Roentgenologist of wide experience in silicosis and tuberculosis cases, testified on behalf of the defendant. From a review of the x-ray examinations and the clinical studies made at the Hamburg Sanitarium he found: 'The diagnosis is definitely established as a caseous tuberculosis of the lung field
with multiple cavities and only minimal silicosis.' In his opinion '* * * the silicosis didn't play any contributing factor in Claimant's death.' The testimony of Dr. Burgess Gordon, a specialist in diseases of the chest called by defendant, was to the same effect. From an examination of the x-ray films he found only '* * * minimal silicosis of the right lung.' He found: '* * * tuberculosis involving chiefly the left lung.' As to silicosis as a cause of death Dr. Gordon testified: 'I don't believe it played any part whatsoever. He died from tuberculosis.' Dr. W. R. Glenney a third medical expert of wide experience in silicosis cases was also called by defendant. From the x-ray films and the records at Hamburg Sanitarium he found '* * * that this man died from advanced bilateral pulmonary tuberculosis, and * * * that he had a minimal degree of anthraco-silicosis described as the ...