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MINNIE KUSENKO v. REPUBLIC STEEL CORPORATION (11/20/84)

decided: November 20, 1984.

MINNIE KUSENKO, WIDOW OF MIKE KUSENKO, APPELLEE,
v.
REPUBLIC STEEL CORPORATION, APPELLANT



NO. 27 W.D. Appeal Dkt. 1984, Appeal from the Order of the Commonwealth Court at No. 2157 C.D. 1982 filed December 7, 1983, affirming the Order of the Workmen's Compensation Appeal Board filed August 12, 1982 at No. A-81358

COUNSEL

Scott E. Becker, Pittsburgh, for appellant.

Stephen I. Richman, William F. Henkel, Stephen I. Richman & Partners, Washington, for amici curiae Bethlehem Mines Corp.; Bethlehem Steel Corp.; Westmoreland Cas. Co.; McGraw-Edison Co.; Pennsylvania Aggregate & Concrete Ass'n; Emway Resources, Inc., Amoco Oil Co.; and Cooper Energy Services.

Lawrence R. Chaban, Washington, for appellee.

Nix, C.j., Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., filed a dissenting opinion. Flaherty, J., filed a dissenting opinion. Hutchinson, J., filed a dissenting opinion.

Author: Mcdermott

[ 506 Pa. Page 105]

OPINION

At issue in this appeal is the standard of causation which triggers the recovery of benefits under Section 301(c)(2) of the Workmen's Compensation Act.*fn1 The facts are set forth below.

This case arose as a result of a fatal claim petition by Minnie Kusenko (appellee) after the death of her husband Mike Kusenko (decedent). Decedent had worked in the coal mining industry for thirty-six years in the employ of Republic Steel Corporation (appellant). After receiving evidence from both sides, the referee found that decedent died as a result of anthracosilicosis and/or coal miner's pneumoconiosis due to exposure to coal dust while working in the mines. The immediate cause of death stated on the death certificate however, was carcinoma of the lung. Coal worker's pneumoconiosis was listed as "other significant causes."

[ 506 Pa. Page 106]

The referee's award was affirmed by the Pennsylvania Workmen's Compensation Appeal Board (Board). The Board based their decision on Crucible Steel Inc. v. Workmen's Compensation Appeal Board, 65 Pa. Commw. 415, 442 A.2d 1199 (1982) stating that the decedent's pneumoconiosis, which was a major reason for his ultimate death, was sufficient to meet the standard of causation for fatal claim benefits. The Commonwealth Court affirmed, applying the standard it set forth in Evon v. Workmen's Compensation Appeal Board, 70 Pa. Commw. 325, 453 A.2d 55 (1982). In order to recover benefits under the Evon standard, all that is required is a "causal relationship" between the disease and the death or disability. In applying this standard, the Commonwealth Court chose to ignore the standard set forth by a plurality of this Court in McCloskey v. Workmen's Compensation Appeal Board, 501 Pa. 93, 460 A.2d 237 (1983) which would require that the occupational disease be a "substantial, contributing factor among the secondary causes bringing about death." Id., 501 Pa. at 101, 460 A.2d at 241. Appellant herein petitioned this Court for appeal and we granted allocatur. After consideration, we reverse and remand to the Commonwealth Court for a decision consistent with this opinion.

The primary import of this case is to set forth a definitive standard for the determination of benefits under the Workmen's Compensation Act for deaths related to occupational hazards. Specifically, when a non-compensable disease of life which is unrelated to work intervenes and death results, what role must the occupational disease play so that benefits are forthcoming?

Resolution of this issue necessarily requires an examination of the statutory language which governs the recovery of benefits in a Workmen's Compensation case.

Pursuant to § 301(c)(2) of the Act:

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

[ 506 Pa. Page 107]

    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 and occurring within three hundred weeks after the last date of employment in an occupation or industry to which he was exposed to hazards of such disease: And provided further, that if the employe's compensable disability has occurred within such period, his subsequent death as a result of the disease shall likewise be compensable. The provisions of this paragraph (2) shall apply only with respect to the disability or death of an employe which results in whole or in part from the employe's exposure to the hazards of occupational disease . . .

77 P.S. § 411(2).

In McCloskey, supra, we focused on the statutory language which provided that this section shall apply to death which results "in whole or in part from the employee's exposure to the hazard of occupational disease" Id., 501 Pa. at 100, 460 A.2d at 240; and we rejected the standard of Consolidation Coal Co. v. Workmen's Compensation Appeal Board, 37 Pa. Commw. 412, 391 A.2d 14 (1978) i.e. that 301(c)(2) requires that death be "immediately caused" by the occupational disease. We also implicitly rejected the rather liberal standard of Evon, supra. which was relied upon in this case by the Commonwealth Court.

The test announced in McCloskey, supra, which we reaffirm today, provides that:

Where there are multiple causes of death and the immediate cause was non-compensable, the requirements of § 301(c)(2) may be met by a showing with unequivocal medical evidence that the deceased suffered from an occupational disease and that it was a substantial, contributing factor among the secondary causes in bringing about death.

501 Pa. 93, 101, 460 A.2d 237, 241.

We are convinced that this standard accurately reflects the intent of the legislature, and balances the competing

[ 506 Pa. Page 108]

    interests of the parties.*fn2 To hold that the occupational disease be the sole or direct cause of the disability or death e.g. Consolidation Coal, supra. is entirely too strict a standard for a claimant to meet, the result being compensation in only the fewest number of cases. On the other hand to say that any contributing cause is sufficient no matter how slight is compensable e.g. Evon, supra. is too heavy a burden to place on industry. Such a standard would effectively reduce the Workmen's Compensation Act to a general health and insurance plan. This limitless liability is clearly not what the framers of § 302(a)(2) had in mind.

We therefore hold that the McCloskey standard shall be applied in those cases involving death benefits under 301(c)(2) of the Workmen's Compensation Act. 77 P.S. § 411(2).*fn3

In light of our disposition, we reverse and remand to the Commonwealth Court for a decision consistent with this opinion.

[ 506 Pa. Page 109]

LARSEN, Justice, dissenting opinion.

I dissent. The paramount responsibility of this Court, in cases arising under the Workmen's Compensation Act, is to liberally construe and apply its provisions in order to effectuate and implement its remedial nature and humanitarian objectives. Krawchuk v. Philadelphia Electric Co., 497 Pa. 115, 120, 439 A.2d 627 (1981); Statutory Construction Act of 1972, 1 Pa.C.S.A. § 1928(c) (pamphlet 1984-85). I believe that the majority's construction and application of section 301(c)(2) of the Act ignores these remedial and humanitarian objectives and, in so doing, exaggerates the interests of the employer at the expense of the worker.

The majority initially rejects the Commonwealth Court's interpretations of section 301(c)(2), 77 P.S. § 411(2), in Consolidation Coal Co. v. Workmen's Compensation Appeal Board (WCAB), 37 Pa. Commw. 412, 391 A.2d 14 (1978) as "too strict", and in Evon v. WCAB, 70 Pa. Commw. 325, 453 A.2d 55 (1982) as too liberal". In order "to set forth a definitive standard for the determination" of death benefits under section 301(c)(2) of the Act, and to "balance the competing interests" of workers and employers, slip opinion at 2 and 4, the majority adopts the standard of causation announced in Mr. Justice McDermott's opinion (joined only by then -- Mr. Justice, now Mr. Chief Justice Nix) in McCloskey v. WCAB, 501 Pa. 93, 101, 460 A.2d 237, 241 (1983), namely:

Where there are multiple causes of death and the immediate cause was non-compensable, the requirements of § 301(c)(2) may be met by a showing with unequivocal medical evidence that the deceased suffered from an occupational disease and that it was a substantial, contributing factor among the secondary causes in bringing about death.

At ___.

In the abstract, I might accept this standard of causation under section 301(c)(2) as a straightforward and reasonably fair accomodation of the conflicting interests of worker and ...


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