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NANCY BRENNAN v. WORKMEN'S COMPENSATION APPEAL BOARD (READING ANTHRACITE COMPANY AND COMMONWEALTH PENNSYLVANIA) (12/28/83)

decided: December 28, 1983.

NANCY BRENNAN, WIDOW OF ALBERT M. BRENNAN, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (READING ANTHRACITE COMPANY AND COMMONWEALTH OF PENNSYLVANIA), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Nancy Brennan, widow of Albert Brennan, deceased v. Reading Anthracite Company and Commonwealth of Pennsylvania, No. A-80094.

COUNSEL

Lester Krasno, for petitioner.

Timothy G. Lenahan, Lenahan & Dempsey, P.C., for respondent, Reading Anthracite Company.

Judges Rogers, Barry and Barbieri, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 79 Pa. Commw. Page 218]

Nancy Brennan, a workmen's compensation claimant, has appealed from an order of the Workmen's Compensation Appeal Board affirming the action of a referee denying her benefits for the death of her husband, Albert Brennan, under Section 301(c)(2) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(2).

[ 79 Pa. Commw. Page 219]

Section 301(c)(2) provides "[t]hat whenever occupational disease is the basis for compensation, . . . it shall apply only to disability or death resulting from such disease. . . ." The issue is whether the claimant met her burden of establishing by unequivocal medical testimony that her husband's death resulted from anthracosilicosis.

The decedent was employed by Reading Anthracite Company from 1965 until June 24, 1977. At about one o'clock a.m. on June 25, 1977, he lost consciousness while eating peanuts and drinking beer on the back of a pickup truck. He regained consciousness but lost it a second time one-half hour later. He was dead on arrival at a hospital.

A fatal claim petition was filed by the claimant on October 9, 1979, in which she alleged that her husband died as a result of anthracosilicosis which he had contracted during his employment at Reading Anthracite Company. The medical evidence introduced by the claimant concerning the cause of her husband's death consisted of her testimony that her husband had given up baseball and was "more reluctant" to do household repairs during the year prior to his death and the testimony of Dr. Richard P. Bindie who stated that "[a]fter a complete autopsy examination which included toxicology studies and microscopic studies of tissues and all, I came to the conclusion that he died as of a respiratory death secondary to aspiration of gastric contents." When asked whether he was "able to formulate a conclusion as to whether or not the death of June 25, 1977, was related to his [the decedent's] twelve years of coal mining employment," Dr. Bindie responded as follows:

A: Okay, he did have evidence of coal worker's pneumoconiosis. Now, this wasn't striking evidence, but they weren't normal

[ 79 Pa. Commw. Page 220]

    lungs. When I say they weren't striking, they weren't like a Stage 3 or massive fibrotic legions [sic] that we see in mines. This man had the very early stages of this disease but he did have these so-called macules in his lungs, plus he had emphysematous changes about some of them. And the way today on worker's pneumoconiosis. The early stages are not generally associated with any x-ray changes but despite normal appearing x-ray, the pulmonary function is altered. It is not quite a normal pulmonary function. You get these little focal ...


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