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MAY DEPARTMENT STORES D/B/A KAUFMANN'S v. WORKMEN'S COMPENSATION APPEAL BOARD (SMITH) (05/04/87)

decided: May 4, 1987.

MAY DEPARTMENT STORES D/B/A KAUFMANN'S, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SMITH), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of John T. Smith, Deceased, Eleanor K. Smith, widow v. May Department Store d/b/a Kaufmann's, No. A-89582.

COUNSEL

Joseph F. McDonough, with him, James G. McLean, Manion, McDonough & Lucas, for petitioner.

Amiel B. Caramanna, Jr., with him, Alexander J. Pentecost, for respondent, Eleanor K. Smith.

President Judge Crumlish, Jr., Judge Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 105 Pa. Commw. Page 581]

The May Department Stores, d/b/a Kaufmann's (Petitioner), has appealed from an order of the Workmen's Compensation Appeal Board (Board), which affirmed the referee's award of fatal claim benefits to Respondent, Eleanor K. Smith, the widow of former Kaufmann's employee, John T. Smith, pursuant to Section 108(n) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of the Act of October 17, 1972, P.L. 930, 77 P.S. § 27.1(n). For the reasons which follow, we reverse.

The pertinent facts as found by the referee may be briefly summarized as follows. Respondent's decedent, John T. Smith, was employed by Petitioner as a stationary engineer. On July 9, 1982, he reported and was admitted to Suburban General Hospital, complaining of a cough and fever. In his deposition, Smith's internist, Dr. Houssani, testified that he initiated treatment for acute respiratory distress, pneumonia in the right upper lobe, Legionnaire's Disease, and cardiomyopathy. Dr. Houssani also stated that Smith's work was the cause of the Legionnaire's Disease, and that that disease was a substantial contributing factor to his death on August

[ 105 Pa. Commw. Page 58231]

, 1982, three days after he was released from the hospital.

In its appeal, Petitioner has raised three closely-related issues: 1) whether there was substantial evidence to support the referee's finding that Respondent's decedent contracted Legionnaire's Disease at work, 2) whether there was substantial evidence to support the referee's finding that Legionnaire's Disease is an occupational disease within the meaning of the Act, and 3) whether Respondent proved by unequivocal medical testimony that decedent suffered from an occupational disease which was a substantial contributing factor among the secondary causes which brought about his death. Because, as explained below, we answer the first two questions in the negative, we need not reach the third.

It is well-settled that where, as here, the party with the burden of proof prevailed below, our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or necessary findings of fact were supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

In making his findings, the referee considered the depositions of three doctors: Dr. Houssani on behalf of Respondent, and Drs. Gaudio and Pasculle on behalf of Petitioner. He relied on the testimony of Dr. Houssani, whose deposition he found to be "credible", in reaching the conclusion that decedent's Legionnaire's Disease was caused by his employment, and that the incidence of the disease was substantially greater in decedent's occupation than in the general population.

It has long been recognized in workmen's compensation cases that "where there is no obvious causal connection

[ 105 Pa. Commw. Page 583]

    linking an injury to the workplace, the connection must be established by unequivocal medical testimony." Lewis v. Commonwealth, 508 Pa. 360, 498 A.2d 800 (1985). "Medical evidence which is less than positive or which is based upon possibilities may not constitute legally competent evidence for the purpose of establishing the causal relationship." Id. at 366, 498 A.2d at 802. Further, the question of whether medical testimony is equivocal or not is a question of law, and is to be determined by reviewing the entire testimony of the medical witness. Id. Such testimony is to be "taken as a whole and a final decision 'should not rest upon a few words taken out of the context of the entire testimony.' Wilkes-Barre, City v. Workmen's Compensation Appeal Board, 54 Pa. Commonwealth Ct. 230, 234, 420 A.2d 795, 798 (1980)." Id. at 366, 498 A.2d at 803.

A review of Dr. Houssani's testimony reveals that he had been the decedent's physician since 1979, treating him on several occasions. Decedent had a heart condition and, to the best of the doctor's recollection, had been hospitalized twice for it within the past year. On direct examination, Dr. Houssani testified that when he first saw decedent in the hospital on July 10, 1982, decedent complained of chest pains, and said he developed a cough and fever while working. The doctor described decedent's work as follows: "[H]e works in this department store I think and he works as an engineer, and he has to take care of the air-conditioning material and works in an atmosphere where he is cleaning the ducts; that kind of work." On cross-examination, the doctor reiterated his testimony that decedent told him his cough was due to his work, but later recanted that statement after he was presented with the "Attending Physician's Statement" that he had filled out in connection with decedent's claim for weekly indemnity benefits. He had checked "no" on the form in response

[ 105 Pa. Commw. Page 584]

    to the question "did the sickness or injury arise out of patient's employment?" He explained that the exact nature of the illness had not been determined as of July 19, 1982, the date on the form, because Legionnaire's Disease had not yet been confirmed.

Dr. Houssani did testify that decedent's disease was work-related. However, he did not volunteer to give details as to the basis for his opinion, and did not elaborate upon his cursory answers, as ...


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