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RICHARD J. PORTER v. COMBUSTION ENGINEERING (02/14/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 14, 1986.

RICHARD J. PORTER, DECEASED, PRISCILLA PORTER, WIDOW
v.
COMBUSTION ENGINEERING, INC., AND COMMONWEALTH OF PENNSYLVANIA, BUREAU OF WORKERS' COMPENSATION. COMMONWEALTH OF PENNSYLVANIA, BUREAU OF WORKERS' COMPENSATION, APPELLANT

Appeal from the Order of the Court of Common Pleas of Washington County in the case of Richard J. Porter (Deceased), Priscilla Porter (Widow) v. Combustion Engineering, Inc., and Commonwealth of Pennsylvania, No. 221 October Term, 1979, A.D.

COUNSEL

Thomas D. Gould, Assistant Chief Counsel, for appellant.

No appearance for appellee.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 95 Pa. Commw. Page 151]

This appeal follows an award of benefits for funeral expenses by a referee, affirmed by the Workmen's Compensation Appeal Board (board) and the Washington County Court of Common Pleas (trial court) to Priscilla Porter (claimant).

The claimant's deceased, Richard J. Porter, died on October 9, 1978, of a myocardial infarction brought on by arteriosclerotic heart disease. In addition, chronic bronchitis and emphysema were listed on the deceased's death certificate as "other significant conditions contributing to death but not related" to the infarction. Following the deceased's demise, the claimant filed a fatal claim petition under the Pennsylvania Occupational Disease Act seeking funeral benefits only.*fn1 The petition was granted by the referee, and that decision was upheld by the board and the trial court. The appellant Commonwealth of Pennsylvania*fn2 has maintained throughout that the referee was in error in finding that the deceased's admitted silicosis contributed to his death, thus making the funeral expenses reimbursable.

We are mindful that our review in the present controversy is limited to a determination of whether necessary findings of fact were supported by substantial

[ 95 Pa. Commw. Page 152]

    evidence. Thiele, Inc. v. Workmen's Compensation Appeal Board, 83 Pa. Commonwealth Ct. 286, 477 A.2d 51 (1984). The specific standard applicable in fatal claim petitions under the Occupational Disease Act was enunciated by the Supreme Court in McCloskey v. Workmen's Compensation Appeal Board, 501 Pa. 93, 460 A.2d 237 (1983):

[W]here there are multiple causes of death and the immediate cause was non-compensable, the requirements of ยง 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. at 101, 460 A.2d at 241.*fn3 See also Kusenko v. Republic Steel Corp., 506 Pa. 104, 107, 484 A.2d 374, 376 (1984).

[ 95 Pa. Commw. Page 153]

We thus must decide whether "a reasonable man, acting reasonably" could have concluded from the evidence presented that the decedent's silicosis was a substantial, contributing factor to his death. Workmen's Compensation Appeal Board v. Mifflin-Juniata State Page 153} Health Foundation, 19 Pa. Commonwealth Ct. 133, 137, 338 A.2d 691, 694 (1975).

The trial court, applying McCloskey, found as follows:

Despite the fact that the silicosis was not the immediate cause of . . . death, considering the totality of the evidence the court finds that [the silicosis] was a significant, contributing factor. Therefore, the court holds that there was unequivocal medical evidence before the referee that the decedent suffered from an occupational disease and that it was a substantial factor in his death.

Trial court opinion at 5.

We are, however, unable to discern any evidence that would adequately support this conclusion of the trial court. The only "medical" evidence submitted by the claimant was the deceased's death certificate, which fails to list silicosis as even a "contributing" condition to death;*fn4 and, although the claimant testified that the deceased became increasingly short of breath in the last months of his life, the deceased also suffered from emphysema, which would also cause such an ailment. Beyond the mere fact that the deceased had been diagnosed previously as suffering from silicosis, there is absolutely no suggestion on the

[ 95 Pa. Commw. Page 154]

    record presented to us that the latter disease was a "substantial, contributing factor" to his death.*fn5

The referee's factual finding that silicosis "contributed in a substantial manner" to the deceased's death was not supported by sufficient evidence, and thus the standard in McCloskey has not been satisfied.

Accordingly, the order of the trial court is reversed.

Order

Now, February 14, 1986, the order of the Court of Common Pleas of Washington County, entered May 10, 1984, at No. 221 October Term, 1979, A.D., is reversed.

Disposition

Reversed.


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