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RICHARD GREENE COAL CO. v. WORKMEN'S COMPENSATION APPEAL BOARD (SHIREY) (10/23/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 23, 1986.

RICHARD GREENE COAL CO., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SHIREY), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Florence Shirey v. Richard Greene Coal Co., No. A-81950.

COUNSEL

Richard A. Bell, Bell, Silberblatt & Swoope, for petitioner.

Thomas F. Morgan, for respondent, Florence Shirey.

Judges Craig and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 101 Pa. Commw. Page 479]

This is an appeal by the Richard Greene Coal Co., employer, of an order of the Workmen's Compensation Appeal Board (Board) which reversed the referee's denial of benefits to claimant Florence Shirey. Mrs. Shirey had filed for fatal claim benefits alleging that her husband died of anthraco-silicosis, a form of pneumoconiosis resulting from prolonged exposure to the dust of anthracite or bituminous coal and a compensable occupational disease under Section 301(c)(2) of the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(2).

Florence Shirey is the widow of Maynard Shirey. Mr. Shirey was employed virtually all of his working life in or around coal mines. He worked the majority of the time outside of the mines both as a laborer on the tipple and as a trucker hauling coal. He was exposed to coal dust during this period. On October 1, 1976, Mr. Shirey suffered a stroke and never returned to work. His health deteriorated gradually over the next three and a half years until his death on May 3, 1980 of a myocardial infarction (heart attack).*fn1 The autopsy read:

[ 101 Pa. Commw. Page 480]

"Immediate cause of death acute myocardial infarction; gangrene left foot; pneumonia, anthracosis, emphysema, and pneumoconiosis." The referee denied fatal claim benefits on the basis that Mrs. Shirey failed to prove that Mr. Shirey's pneumoconiosis was the cause of death. The standard of proof applicable at the time the referee made his decision was set forth in Consolidation Coal Company v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 412, 391 A.2d 14 (1978). Under Consolidation Coal it was necessary to prove that death resulted from an occupational disease and not simply that the disease was a contributing factor. Claimant appealed to the Board. On December 10, 1982, this Court decided the case of Evon v. Workmen's Compensation Appeal Board, 70 Pa. Commonwealth Ct. 325, 453 A.2d 55 (1982). Our decision in Evon relaxed the standard of proof requiring only that a causal relationship between the occupational disease and death be established. Based on Evon, the Board, on March 3, 1983, reversed the referee's decision. The Board ruled that the referee's findings clearly established that pneumoconiosis was one of the causes of death. The employer's timely appeal of that decision is before us.

[ 101 Pa. Commw. Page 481]

On May 9, 1983, the Pennsylvania Supreme Court decided the case of McCloskey v. Workmen's Compensation Page 481} Appeal Board, 501 Pa. 93, 460 A.2d 237 (1983). The case before us contains many factual similarities to McCloskey. In McCloskey the Supreme Court discarded the standard enunciated in Evon and adopted a new standard. The court said:

Therefore, we hold today 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. Proving merely, as appellant contends, that the disease was or may have been a contributing factor is inadequate.

Id. at 101, 460 A.2d at 241.

The issue before us then is whether the claimant established by unequivocal medical evidence that Mr. Shirey suffered from pneumoconiosis and that it was a substantial contributing factor among the secondary causes in bringing about Mr. Shirey's death. We remand.

In Bureau of Worker's Compensation v. Uchaker, 93 Pa. Commonwealth Ct. 400, 501 A.2d 703 (1985), the Board, in applying the Consolidation Coal standard, had reversed the referee's grant of fatal claim benefits determining that the referee made no finding that pneumoconiosis actually caused the death. The referee had made a finding that pneumoconiosis was a "significant contributing factor" to death. The trial court, deciding the appeal after the McCloskey decision was rendered, found that the referee's findings satisfied the McCloskey test and reversed the Board. We affirmed. We reasoned that a claim is not automatically thrust outside the realm of McCloskey because the words

[ 101 Pa. Commw. Page 482]

"substantial contributing factor" were not used. If unequivocal medical evidence exists to support such a finding, that is sufficient to meet the McCloskey test.

Unfortunately, we are unable to reach such a final determination of whether the standard set forth in McCloskey was met in the case before us. The referee did find that pneumoconiosis was a contributing cause of Mr. Shirey's death. Because the Consolidation Coal rule was the standard existing at the time of his decision, the referee understandably saw no need for further elaboration upon the degree to which the medical evidence established that pneumoconiosis contributed to Mr. Shirey's death. In light of our limited scope of review, however, we must remand for more precise findings of whether the medical evidence unequivocally established that pneumoconiosis was a substantial and contributing factor to Mr. Shirey's death.

We recognize the considerable delay claimant has suffered in awaiting a resolution of her claim. We, therefore, remand this matter to the Board with directions to remand to the referee for resolution within ninety days.

Order

Now, October 23, 1986, it is ordered that this case be remanded to the Workmen's Compensation Appeal Board. The Workmen's Compensation Appeal Board is ordered to remand this matter to the referee for resolution within ninety days of this order in a manner consistent with this opinion.

Jurisdiction relinquished.

Disposition

Remanded.


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