Appeal from the Order of the Workmen's Compensation Appeal Board in case of Robert E. Johnson, Dec'd., Hazel K. Johnson, widow v. Jones & Laughlin Steel Corporation, No. A-88879.
Vincent J. Quatrini, Jr., for petitioner.
David M. McCloskey, with him, Ronald Ganassi, Will, Keisling, Ganassi & McCloskey, for respondent.
Judges MacPhail and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail. Judge Colins dissents.
[ 107 Pa. Commw. Page 165]
Hazel K. Johnson (Claimant), widow of Robert E. Johnson (Decedent), appeals from the denial of her fatal claim petition. Both the referee and the Workmen's Compensation Appeal Board (Board) concluded that Claimant had failed to meet her burden of proving that an occupational disease was a substantial contributing factor in Decedent's death.*fn1 We affirm.
Prior to his death, Decedent had received workmen's compensation benefits for total disability due to "anthracosilicosis, chronic asthmatic bronchitis, possible silicosis and probable bronchiectasis." Referee's Fact Finding No. 3. It was found that these occupational diseases resulted from or were aggravated by Decedent's work with Jones & Laughlin Steel Corp. (Employer). Decedent's death certificate, reflecting his demise on January 7, 1983, listed three immediate causes of death: pulmonary failure, severe chronic obstructive lung disease and cardiopulmonary insufficiency. No specific occupational diseases were listed as contributing factors.
Several hearings were held before a referee during which Claimant testified and three medical expert depositions were introduced. Two of the depositions were introduced on behalf of Employer and included the respective doctors' opinions that Decedent's death was not causally related to his employment. The third deposition which was introduced was of Decedent's treating physician, Dr. Notaro, who opined that Decedent's
[ 107 Pa. Commw. Page 166]
death was caused by the same occupational diseases for which Decedent had received total disability benefits during the latter part of his life.
With regard to the medical testimony presented, the referee found as follows:
7. That your Referee is not overly impressed by the medical testimony presented by either party. The testimony presented by the defendant's two medical experts conflicts with each other and the testimony of the claimant's medical witness is ambiguous.
Rather than rely on the medical testimony presented, the referee instead cited an autopsy report, which had been appended to Dr. Notaro's deposition, as the most credible evidence in establishing the cause of Decedent's death. The referee found that the autopsy report made no reference to the existence of occupational diseases and concluded, based thereon, ...