Appeals from the Order of the Court of Common Pleas of Westmoreland County in case of John Kilvady, deceased, Helen D. Kilvady, Widow v. United States Steel Corporation and Commonwealth of Pennsylvania, No. 3663 of 1983.
Henry A. Riley, Assistant Counsel, with him, Paul A. Robb and Thomas D. Gould, Assistant Counsels, for appellant, Department of Labor & Industry, Bureau of Workers' Compensation.
Robert C. Jones, for appellant, United States Steel Corporation.
Bernard S. Shire, with him, Mark S. Galper, Shire & Bergstein, for appellee, Helen D. Kilvady.
Judges Doyle and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. Dissenting Opinion by Senior Judge Kalish.
[ 90 Pa. Commw. Page 587]
The Commonwealth of Pennsylvania, Bureau of Workers' Compensation (Bureau)*fn1 and the United States Steel Corporation (U.S.S.)*fn2 have filed notices of appeal from the order of the Court of Common Pleas of Westmoreland County which reversed an
[ 90 Pa. Commw. Page 588]
administrative denial of death benefits under The Pennsylvania Occupational Disease Act (Act).*fn3 These appeals have been consolidated for argument and this opinion will be dispositive of both.
Helen Kilvady (Claimant) filed a fatal claim petition on November 14, 1972 alleging that her husband, John Kilvady (decedent), died on January 17, 1972 from silicosis as a result of exposure to a silica hazard throughout the course of his employment with U.S.S. Decedent worked for U.S.S. from 1924 until November 8, 1957, when, due to the closing of his plant and to pulmonary problems, he left that employment. He came under the treatment of Dr. R. F. Kleinschmidt at some time before he left work and in July, 1957, Dr. Kleinschmidt diagnosed him as being totally disabled due to emphysema, glomerulonephritis and hypothyroidism. Dr. Kleinschmidt last examined decedent in 1966.
An autopsy performed by Dr. J. M. Brandon determined that decedent had been suffering from silicosis for some time prior to his death and that silicosis was the cause of his death. Dr. Brandon, however, was unable to determine if decedent became totally disabled from silicosis within four years after his separation from U.S.S. Subsequently, Dr. Brandon's autopsy report was reviewed by Dr. Kleinschmidt. As a result of that report, Dr. Kleinschmidt revised his 1957 diagnosis and concluded that decedent had been disabled by silicosis in 1957.
On June 22, 1976, a referee dismissed Claimant's petition concluding that she had failed to establish that decedent had been totally disabled from an occupational disease within a four year period after his last exposure to a silica hazard, and ...