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GOLDIE EVON v. WORKMEN'S COMPENSATION APPEAL BOARD (U.S. STEEL CORPORATION AND COMMONWEALTH PENNSYLVANIA) (12/10/82)

decided: December 10, 1982.

GOLDIE EVON, WIDOW OF PAUL, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (U.S. STEEL CORPORATION AND COMMONWEALTH OF PENNSYLVANIA), RESPONDENTS. MARIAN GANNON, WIDOW OF MICHAEL, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (U.S. STEEL CORPORATION AND COMMONWEALTH OF PENNSYLVANIA), RESPONDENTS



Appeals from the Orders of the Workmen's Compensation Appeal Board in the case of Goldie Evon, w/o Paul v. U.S. Steel Corporation and Commonwealth of Pennsylvania, No. A-78476; and in the case of Marian Gannon, w/o Michael v. U.S. Steel Corporation and Commonwealth of Pennsylvania, No. A-78041.

COUNSEL

Lawrence R. Chaban, with him J. Scott Leckie and Kenneth J. Yablonski, for petitioners.

Louis A. Raimond, for respondent, U.S. Steel Corporation.

Richard F. Faux, with him James D. Strader, and Lisa Roth, Assistant Attorney General, for respondent, Commonwealth of Pennsylvania.

Judges Mencer, Craig and MacPhail, sitting as a panel of three. President Judge Crumlish, Jr. and Judges Rogers, Blatt, Williams, Jr., Craig, MacPhail and Doyle. Opinion by Judge Rogers. Concurring and Dissenting Opinion by President Judge Crumlish, Jr.

Author: Rogers

[ 70 Pa. Commw. Page 326]

We consolidated for argument the appeals of Goldie Evon and Marian Gannon from orders of the Workmen's Compensation Appeal Board overturning referees' decisions awarding them compensation on fatal claim petitions in which they alleged that their husbands' deaths resulted from work-related coal workers'*fn1 pneumoconiosis. The issue in each case is

[ 70 Pa. Commw. Page 327]

    that of whether the claimant had shown that the death of her husband resulted from the disease; and the statutory provision applicable is Section 301(c)(2) of The Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(2), which provides pertinently as follows:

The terms "injury, personal injury," and "injury arising in the course of his employment," as used in this act, shall include, unless the context clearly requires otherwise, occupational disease as defined in section 108 of this act: Provided, That whenever occupational disease is the basis for compensation, for disability or death under this act, it shall apply only to disability or death resulting from such disease. . . . (footnote omitted) (emphasis added).

In the case of Goldie Evon's petition the referee found that her husband's condition of pneumoconiosis was a contributing cause of his death by myocardial infarction. In the case of Marion Gannon's petition another referee found that the pneumoconiosis accelerated her husband's death by myocardial infarction and that the disease was one of the causes of the death.

The Workmen's Compensation Appeal Board's actions of reversing the referee's award of benefits in both cases were grounded on the case of Consolidation Coal Co. v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 412, 391 A.2d 14 (1978), which the board read as holding that the provision of Section 301(c)(2) that the death, or disability, for which compensation is sought must be one "resulting from such disease," will not be satisfied by proof that the disease was a contributing or accelerating cause only. The medical testimony in Consolidation Coal which this court decided did not demonstrate that the death resulted from the disease is reproduced in the court's opinion in that case. While the doctor said

[ 70 Pa. Commw. Page 328]

    that he believed that the disease contributed to the death he also testified that he could not quantitate to what extent it predisposed his patient to develop more severe side effects from other superimposed diseases; and he never testified that the disease was a contributing or acclerating cause of death. While we did not declare in that case that where the disease is a contributing cause or an accelerating cause of death or disability it was not compensable, we did write that the Act requires medical evidence to be presented "which establishes that a claimant's death resulted from an occupational disease, not simply that the disease was a contributing factor." (Emphasis in original.) Id. at 422, 391 A.2d at 19. The Appeal Board has not been alone in its state of bemusement over this language, as witness the cases of Elliott v. Workmen's Compensation Appeal Board, 57 Pa. Commonwealth Ct. 70, 425 A.2d 885 (1981); Refosco v. Workmen's Compensation Appeal Board, 57 Pa. Commonwealth Ct. 74, 425 A.2d 887 (1981); Vargo v. Workmen's Compensation Appeal Board, 57 Pa. Commonwealth Ct. 77, 425 A.2d 888 (1981); and Hauck v. Workmen's Compensation Appeal Board, 47 Pa. Commonwealth Ct. 554, 408 A.2d 585 (1979). In these cases, the court, fixing on Consolidation Coal, made declarations to the effect that conditions which contribute to death but are not related to the immediate cause of death are insufficient to support an award and that a claimant is required to show that the occupational disease "in and of itself could have resulted in the death." We today disapprove such statements insofar as they are inconsistent with the true test in this class of case which is as follows:

Neither Section 301(c)(2) nor any other provision of The Pennsylvania Workmen's Compensation Act requires that the death or disability be solely caused by the occupational disease, or

[ 70 Pa. Commw. Page 329]

    that the occupational disease itself must be the active agency which terminates life or brings about disability. Likewise the statutes do not exclude death as compensable where the occupational disease is the contributory or accelerating cause. The important factor is that there shall be a causal relationship between the disease and the death or disability.

This statement is a paraphrase of the test as stated in Rohner v. Fox Products, 164 Pa. Superior Ct. 610, 615, 67 A.2d 605, 608 (1949), and repeated in DeMascola v. Lancaster, 200 Pa. Superior Ct. 365, 369, 189 A.2d 333 (1963).*fn2 Section 301(c) of The Pennsylvania Occupational Disease Act, Act of June 21, 1939, as amended, 77 P.S. § 1401(c) with which the Superior Court was concerned in Rohner and DeMascola, reads and still reads: "Whenever compensable disability or death is mentioned as a cause for compensation under this act, it shall mean only compensable disability or death resulting ...


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