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HELEN CZANKNER v. SKY TOP LODGE (08/16/73)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 16, 1973.

HELEN CZANKNER, WIDOW OF ANDREW CZANKNER, DECEASED, APPELLANT,
v.
SKY TOP LODGE, INC. AND AMERICAN MUTUAL INSURANCE CO., INSURANCE CARRIER, AND WORKMEN'S COMPENSATION APPEAL BOARD, APPELLEES

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Helen Czankner, Widow of Andrew Czankner, deceased, v. Sky Top Lodge, Inc. and American Mutual Insurance Co., Insurance Carrier, No. A-66007.

COUNSEL

Harry P. O'Neill, Jr., with him Epstein, O'Neill & Utan, for appellant.

George E. Clark, Jr., with him Cody H. Brooks, for appellees.

Judges Crumlish, Jr., Kramer and Blatt, sitting as a panel of three. President Judge Bowman and Judges Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Crumlish, Jr. did not participate. Opinion by Judge Blatt.

Author: Blatt

[ 13 Pa. Commw. Page 222]

This is a workmen's compensation case, in which the sole issue is whether or not there was sufficient medical testimony presented by the claimant to establish a causal connection between an alleged accident and the subsequent death of Andrew Czankner (decedent).

The decedent was employed by Sky Top Lodge, Inc. (employer), on November 1, 1967, when, as the workmen's compensation referee found, "the decedent was helping to unload bags of lime from a chute; he braced himself to catch a bag which weighed approximately 80 pounds, extended his arms to stop [the] bag from falling to the ground, and felt a pull in his right inguinal region." On February 27, 1968, the decedent was operated on for the repair of a right inguinal hernia, and on March 13, 1968, while still in the hospital, he died. The decedent's widow (claimant) thereafter filed a claim petition pursuant to the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, 77 P.S. ยง 1 et seq. Following a hearing, the referee found that the decedent had suffered a hernia

[ 13 Pa. Commw. Page 223]

    due to an accident in the course of his employment*fn1 and that the operation for the hernia resulted in a pulmonary embolism which was the cause of death. Compensation was therefore granted.

On appeal, in a decision dated February 8, 1973, the Workmen's Compensation Appeal Board (Board), without taking any additional evidence, reversed the decision of the referee on the basis that the medical testimony relied on by the referee as to the cause of death was equivocal and therefore not competent.

Our scope of review in workmen's compensation cases is limited to a determination of whether or not constitutional rights were violated, an error of law was committed, or any necessary finding of fact was unsupported by substantial evidence. Arnold Coal & Supply Co., Inc. v. Markle, 8 Pa. Commonwealth Ct. 107, 300 A.2d 916 (1973); Bayuk Cigar Company v. Hawn, 8 Pa. Commonwealth Ct. 45, 300 A.2d 837 (1973). And where, as here, the Board has taken no additional evidence, we must rely on the facts as found by the referee if they are supported by sufficient competent evidence. Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973).

It is undisputed that approximately two weeks after being operated on for a hernia, during which period he was ambulatory and apparently recovering, the decedent suddenly died. No autopsy was performed. The claimant introduced the testimony of Dr. C. J. Morosini, the decedent's personal physician, to establish a causal connection between the operation and the death.

[ 13 Pa. Commw. Page 224]

Dr. Morosini had examined the decedent frequently prior to the operation, and although he had not participated in the operation or in the decedent's subsequent care, he had seen the decedent once at the hospital and had subsequently examined the hospital's records regarding the decedent's condition and care. On direct examination, Dr. Morosini testified, in part, as follows: "Q. Now, doctor, what, in your opinion, was the cause of Andrew Czankner's death? A. In my professional opinion the cause of Andrew Czankner's death from statistics, 80% of the cases are due to a massive pulmonary embolism and 20% to coronary infarction. Knowing Andrew Czankner I know that there was no circulatory problem in all the times I have examined him, and, since there were some complications, more than likely the patient -- with no reflection on the surgeon but since there was an operation, regardless of the fact of the 80% pulmonary embolism and the 20% coronary infarction, I feel that the operation was a traumatic cause for his death. Q. Do I understand that the operation caused a pulmonary embolism which, in turn, caused the death of Andrew Czankner? By Mr. Brooks [attorney for employer]: Objection to the question. By The Referee: Sustained. By Mr. Neill [attorney for claimant]: Q. Can you, subject to the above objection, tell us whether or not the operation, Number 1, had anything to do with the creation of an embolism? A. Yes. Q. And this is your professional opinion? A. My professional opinion would be that the operation was the causative factor, first and foremost; secondly, in my opinion, due to the suddenness with which it hit the circulation, that the death was due, more than likely, to a pulmonary embolism. Q. Sometimes our courts frown upon the term 'more than likely,' and I ask you if in your professional opinion you would give us a statement of your opinion of the cause of death. A. Yes, I would say that the exact cause of Page 225} death was due to a pulmonary embolism." (Emphasis added.) On cross-examination, Dr. Morosini testified: "Q. Since you state you did not see Mr. Czankner at or about the time he died and since you had not seen him for at least a week prior to his death and you really took no part in his care or treatment while in the hospital, is it fair to state that your opinion of a pulmonary embolism is in reality based on these percentage figures that you have already made reference to? A. No, not in reality on the percentages, but also because here is a man that I have observed for many years without any circulatory problems, without any chest pain, and with a normal EKG. So I can give my opinion that it was not a cardiac case. Q. But, doctor, the very fact that there are these percentages points up, does it not, that it is likely or not an impossibility that Mr. Czankner's death was the result of a coronary infarct? A. I can't justify my opinion because there was no autopsy. Q. And you are telling me that you would need an autopsy to justify your coronary infarct or pulmonary embolism? A. Right. Q. So without that, doctor, aren't you really saying, at best, that it is possible that Mr. Czankner died from a pulmonary embolism, also it is possible that he died from a coronary infarction? A. That is possible. Q. Isn't that really your opinion, that you are dealing with possibilities? Either one is possible, is it not? A. Right. Q. And to express a medical opinion as to which was the case you would need an autopsy, would you not? A. Yes, for proof of death. Q. Otherwise you are giving us odds four to one? A. Take it or leave it, that's it." It was the above testimony which the Board found to be equivocal. We disagree.

It is certainly true that where, as here, "there is no obvious causal relationship between the employee's injury and the alleged accident unequivocal medical testimony is necessary to establish the causal connection."

[ 13 Pa. Commw. Page 226]

    death was caused by the cerebral contusion." 190 Pa. Superior Ct. at 118, 150 A.2d at 881. Similarly, see Hagner, supra.

It is true that Dr. Morosini did not have the benefit of an autopsy or of an extensive examination of decedent before his death, but "'[t]he cause of death is not required to be established to be a medical certainty, nor is an autopsy an absolute essential in cases of accidental death. . . . The conclusions [of the medical witness] are based upon a chain of circumstances in logical sequence, pointing to a causal connection between accidental injury and death.'" Parks v. Winkler, 199 Pa. Superior Ct. 224, 227, 184 A.2d 124, 126 (1962).

Dr. Morosini's testimony was sufficiently competent and unequivocal to justify the findings of the referee. The testimony was, of course, contradicted by that of other competent medical witnesses, but, where there is "a conflict of medical opinion, it is the province of the compensation authorities [in this case the referee] to decide which conclusion will be adopted. . . ." Smith v. Pullman-Standard Car Manufacturing Co., 194 Pa. Superior Ct. 263, 269, 166 A.2d 299, 302 (1960).

For the above reasons, therefore, we enter the following

Order

Now, August 16, 1973, it is hereby ordered that judgment be entered in favor of Helen Czankner and against Sky Top Lodge, Inc. and/or its insurance carrier, American Mutual Insurance Co., for compensation at the rate of $34.00 per week beginning March 13, 1968 and continuing thereafter for a period of 500 weeks ending October 12, 1977 when compensation is terminated, all within the terms and limits of the Pennsylvania Workmen's Compensation Act, including legal interest on deferred installments.

Disposition

Former opinion adopted and reaffirmed. Benefits awarded.


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