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

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, ...


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