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STAMPONE v. ANTHONY DALLY & SONS (03/18/59)

March 18, 1959

STAMPONE, APPELLANT,
v.
ANTHONY DALLY & SONS, INC., ET AL.



Appeals, Nos. 231 and 242, Oct. T., 1958, from order of Court of Common Pleas of Northampton County, April T., 1957, No. 7, in case of Mary Stampone, widow of Michael Stampone, deceased v. Anthony Dally & Sons, Inc. et al. Order reversed.

COUNSEL

A. Albert Gross, with him Milton J. Goodman, and Gross & Herster, for appellant.

Wilson H. Oldhouser, Assistant Attorney General, and Thomas D. McBride, Attorney General, for Commonwealth, appellant.

Edmund P. Turtzo, with him Daniel F. Joella, for claimant appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Woodside

[ 188 Pa. Super. Page 617]

OPINION BY WOODSIDE, J.

This case arises under The Pennsylvania Occupational Disease Act of June 21, 1939, P.L. 566, 77 PS ยง 1201 et seq.

Claimant, Mary Stampone, widow of Michael Stampone, filed her petition for compensation which was first heard by Referee David W. Phillips on November 22, 1954. The defendant offered no medical evidence at the hearing.

The claimant's evidence showed that she was the widow of Michael Stampone; that he had been employed by various slate quarries from 1925 to November 1953, and that during that time he was exposed to a silica hazard. In November of 1953 an x-ray examination of the decedent disclosed the presence of a cancerous mass in the right lung. The right lung was removed by surgery on December 2nd, and decedent died twenty-six hours after the operation. The physicians

[ 188 Pa. Super. Page 618]

    who testified on behalf of the claimant stated that death was caused by an extensive lesion carcinoma in the right lung field, and the referee found that this was the primary cause of death. After the removal of the right lung, the vital capacity of the left lung was not sufficient to maintain the proper oxygenation of the blood. Ordinarily the vital capacity of one lung would be adequate to sustain life. The decedent, however, had a 66% vital capacity immediately before the operation. The evidence presented before the referee in the first hearing revealed various physical conditions which could have accounted for the reduced vital capacity of the left lung. The autopsy report showed that death resulted from a decreased respiratory count due to compression of the lung structure. It would be possible to find from the evidence that the reduced vital capacity of the left lung could have been due to a dilation of the heart, to hypertrophy of the heart and shifting of the heart to the left, to bronchiectasis with fibrosis of the lung structure, or to anthracosis (silicosis). The referee found, however, that the silicosis from which defendant suffered was a major contributory cause and an accelerating factor in the death of the decedent.

The defendant and the Commonwealth both appealed from the referee's findings of fact and conclusions of law. The Workmen's Compensation Board, after reviewing the record concluded: "The medical evidence submitted in behalf of the claimant is not entirely satisfactory and lacks the corroborating data normally considered necessary to establish silicosis. There exists, to our mind, a substantial doubt arising out of this testimony." The board, therefore, remanded the case to the referee for the ...


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