Appeal from the Order of the Workmen's Compensation Appeal Board in case of Gladys Marie Morris, widow of Sargeant McDowell v. Crucible Steel Co., No. A-79288.
David N. Rutt, Greenlee, Richman, Derrico & Posa, for petitioner.
Edwin H. Beachler, McArdle, Caroselli, Spagnolli & Beachler, for respondent.
Judges Rogers, Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt. Judge Palladino did not participate in the decision in this case. Concurring Opinion by Judge Rogers. Judge Williams, Jr., joins.
[ 65 Pa. Commw. Page 416]
This is an appeal from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of occupational disease benefits to Gladys Marie Morris (claimant), the widow of Sargeant York McDowell (decedent).
The decedent received workmen's compensation benefits for a disability resulting from an occupationally related lung disease contracted while in the employ of Crucible Steel, Inc. (employer), from December 2, 1974 up until the time of his death on November 22, 1977. The claimant filed a fatal claim petition and, following hearings, the referee granted benefits. In doing so, he relied upon the testimony of Dr. J. D. Silverman, the claimant's medical witness, that "the most significant cause" of the decedent's death was silicosis with resulting complications of chronic asthmatic bronchitis and pulmonary emphysema, which resulted from the decedent's employment in the pottery and steel industries. Because of the claimant's subsequent
[ 65 Pa. Commw. Page 417]
remarriage, the award was limited to 71 weeks. The Board affirmed the referee and this appeal followed.
Where the party with the burden of proof has prevailed below, our scope of review, and that of the Board, when it takes no additional evidence, is limited to determining whether or not there has been an error of law or a violation of constitutional rights and whether or not the referee's findings of fact are supported by substantial evidence. Custom Concrete Corp. v. Workmen's Compensation Appeal Board, 52 Pa. Commonwealth Ct. 331, 415 A.2d 989 (1980).
The employer asserts that the Board erred as a matter of law in affirming the referee's finding that silicosis with accompanying pulmonary complications was "the most significant cause" of death. It argues (1) that the characterization of silicosis as "the most significant cause" does not satisfy the requirement of "death resulting from" an occupational disease set forth in Section 301(c)(2) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(2), and (2) that the award of benefits was not supported by substantial evidence in the record.
To prevail in a fatal claim petition which alleges that death resulted from an occupational disease, the claimant must satisfy Section 301(c)(2) of the Act by demonstrating by competent medical evidence that death resulted from an occupational disease as opposed to a showing that the disease was merely a contributing factor in causing the decedent's death. McCloskey v. Workmen's Compensation Appeal Board, 58 Pa. Commonwealth Ct. 29, 427 A.2d 288 (1981); Hauck v. Workmen's Compensation Appeal Board, 47 Pa. Commonwealth Ct. 554, 408 A.2d 585 (1979). The fact that the ...