Appeal from the Order of the Workmen's Compensation Appeal Board in case of Mike Varhola, Deceased, Anna M., Widow v. Republic Steel Corporation and Commonwealth of Pennsylvania, No. A-80711.
Linton L. Moyer, Thomson, Rhodes & Cowie, for petitioner.
Ronald J. Zera, with him, Daniel D. Harshman, for respondent, Anna M. Varhola.
Judge MacPhail and Senior Judges Blatt and Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.
[ 89 Pa. Commw. Page 136]
Republic Steel Corporation (Employer) appeals here from a decision of the Workmen's Compensation Appeal Board (Board) affirming the referee's award of benefits to Anna M. Varhola (Claimant).
Claimant filed a fatal claim petition for compensation pursuant to Section 108 of The Pennsylvania Workmen's Compensation Act*fn1 following the death of her husband, Mike Varhola (Decedent). Claimant alleged that Decedent's death was as a result of anthracosilicosis and/or coal workers' pneumoconiosis. The burden of proving her right to the compensation rested with the Claimant.*fn2 Because Claimant
[ 89 Pa. Commw. Page 137]
prevailed before the Board, we must determine in our review "whether the referee's findings of fact are supported by substantial evidence, and whether there has been an error of law or a violation of constitutional rights."*fn3
We must first determine the correct legal standard to be applied in determining Claimant's eligibility for benefits. The certification of Decedent's death found in the record states that the immediate cause of death was carcinomatosis due to carcinoma of the lung. Soft coal workers' pneumoconiosis was set forth under "other significant conditions." There is no dispute that Decedent was suffering from carcinoma of the lung at the time of his death.
In Kusenko v. Republic Steel Corporation, Pa. , 484 A.2d 374 (1984) our Supreme Court has set forth "a definitive standard for the determination of benefits under the Workmen's Compensation Act for deaths related to occupational hazards." The Court reaffirmed its plurality determination as set forth in McCloskey v. Workmen's Compensation Appeal Board, 501 Pa. 93, 101, 460 A.2d 237, 241 (1983) that
Where there are multiple causes of death and the immediate cause was non-compensable, the requirements of § 301(c)(2) [of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411] may be met by a showing with unequivocal medical evidence that the deceased suffered from an occupational disease and that it ...