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MODERN TRANSFER v. COMMONWEALTH PENNSYLVANIA (12/11/79)

decided: December 11, 1979.

MODERN TRANSFER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ELIZABETH FEIERTAG, WIDOW OF EDWIN J. FEIERTAG, DECEASED, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Elizabeth Feiertag, Widow of Edwin J. Feiertag, Deceased v. Modern Transfer, Appeal No. A-74521.

COUNSEL

Ronald F. Bove, with him Swartz, Campbell & Detweiler, for petitioner.

Frank A. Doocey, for respondent.

Judges Crumlish, Jr., Wilkinson, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 47 Pa. Commw. Page 594]

Edwin J. Feiertag died of a heart attack on April 25, 1975, in the course of his employment. His widow, Elizabeth Feiertag (claimant) filed a fatal claim petition for workmen's compensation benefits on behalf of herself and three children contending that decedent's work activities on April 22, 23, 24 and 25, 1975, aggravated a pre-existing heart condition which resulted in his death. The referee dismissed the petition concluding that claimant had failed to establish that Feiertag's death was work-related within the meaning of Section 301(c) of The Pennsylvania Workmen's Compensation Act.*fn1 The Workmen's Compensation Appeal Board (Board) reversed and awarded benefits, without hearing additional evidence. After careful consideration of the law and the record, we reverse the Board.

The sole question on appeal is whether the claimant presented sufficient competent medical evidence to establish a causal connection between decedent's work activities and his death.

In a workmen's compensation case where an allegedly compensable death is in part attributable to a pre-existing pathology, the claimant must establish by unequivocal medical evidence that the decedent's work activities aggravated the pre-existing condition thereby contributing to his death. American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 377 A.2d 1007 (1977). The equivocacy of the testimony goes to the competency of the evidence and testimony based upon mere possibilities or conjecture is not legally competent. Zoltak v. Keystone-Harmony Dairy, 47 Pa. Commonwealth Ct. 378,

[ 47 Pa. Commw. Page 595408]

A.2d 198 (1979); American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, supra. Thus, medical testimony that decedent's work duties "could have" or "may have" or "probably" aggravated his pre-existing condition is not competent to establish that the death was work-related. Beaver Valley Builders Supply v. Workmen's Compensation Appeal Board, 46 Pa. Commonwealth Ct. 344, 406 A.2d 1172 (1979);*fn2 Riccardi v. Workmen's Compensation Appeal Board, 34 Pa. Commonwealth Ct. 316, 383 A.2d 571 (1978).

This is not to say, however, that the claimant must present medical evidence establishing the precise cause of death or that an autopsy is necessary in every instance of accidental death. Czankner v. Sky Top Lodge, Inc., 13 Pa. Commonwealth Ct. 220, 308 A.2d 911 (1973). Nor is the claimant compelled to establish the percentage or degree to which the decedent's death was work-related. American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, supra. Rather, the claimant must establish that within a reasonable degree of medical certainty decedent's work activity or work conditions influenced his death through the aggravation of a pre-existing pathology. American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, supra; Workmen's Compensation Appeal Board v. Bowen, 26 Pa. Commonwealth Ct. 593, 364 A.2d 1387 (1976).

[ 47 Pa. Commw. Page 596]

Here, two qualified medical experts testified as to causation. Dr. Robert I. Catherman, testifying for the claimant, opined that the underlying cause of death was coronary heart disease. Moreover, that death was related in some manner to a combination of the underlying disease process and decedent's work duties. Classifying decedent's work activities as moderate to heavy, in the doctor's opinion, they caused physical and psychological stress which aggravated and influenced the cause of death. Dr. Catherman further stated, however, that ...


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