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ANDREW MUSIOLOWSKI v. WORKMEN'S COMPENSATION APPEAL BOARD (U.S. STEEL CORPORATION) (07/08/88)

filed : July 8, 1988.

ANDREW MUSIOLOWSKI, DECEASED, BY ROSE MUSIOLOWSKI, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (U.S. STEEL CORPORATION), RESPONDENTS



117 Pa. Commw. 488.

Opinion by Senior Judge Kalish. Dissenting Opinion by Judge MacPhail.

Author: Kalish

[ 117 Pa. Commw. Page 493]

This matter is before this court after having been remanded to the Workmen's Compensation Appeal Board (Board) for clarification in connection with the standard of proof in the case of Kusenko v. Republic Steel Corp., 506 Pa. 104, 484 A.2d 374 (1984).

Decedent, Andrew Musiolowski, worked for the respondent, U.S. Steel Corporation, for thirty-six years. He died of a heart attack. At the time of his death he suffered from heart disease and pneumoconiosis. His widow's claim is based on work-related pneumoconiosis.

Upon remand, the Board re-adopted its prior opinion and held that, while pneumoconiosis may have contributed to decedent's death, there is no legally sufficient evidence to support a finding that the pneuconiosis

[ 117 Pa. Commw. Page 494]

    was a major contributing factor in causing his death and that decedent's doctor's testimony did not contain the requisite standard of proof.

"In cases requiring medical testimony, competent evidence means, that medical testimony which expresses unequivocality." Evans v. Workmen's Compensation Appeal Board (Anchor Hocking Corp.), 87 Pa. Commonwealth Ct. 436, 440, 487 A.2d 477, 479-480 (1985). Equivocal medical evidence is not competent evidence. Upon review, it is our duty to determine whether the medical testimony was unequivocal. In making this determination, expert testimony must be reviewed in its entirety to determine if it expresses the unequivocality required. Sears, Roebuck & Co. v. Workmen's Compensation Appeal Board, 48 Pa. Commonwealth Ct. 161, 409 A.2d 486 (1979). In this connection we have held, specifically in heart attack cases, that the mere absence of magic words should not preclude the recovery of benefits where the referee, who personally heard the testimony, determined that the requisite causation was present. Id. at 166, 409 A.2d at 488.

At the hearing before the referee, Dr. Charles Krifcher, a pathologist, testified for the decedent's widow that when he performed the autopsy he found that "the lungs were studded with numerous scattered nodules, many of which were firm and hard and black"; that the lungs had a sandpaper feel, all of which was "indicative of coal worker's pneumoconiosis." Notes of Testimony (N.T.) at 7. He said, "[t]he main cause of death was extensive acute posterior myocardial infarction." N.T. at 13. He went on to explain what he meant when he said that the myocardial infarction was the main cause of death, namely:

[T]hat coal worker's pneumoconiosis . . . had the effect of decreasing the amount of lung tissue

[ 117 Pa. Commw. Page 495]

    available for exchange of oxygen or oxygenation of the blood; and, . . . [by] decreasing the ability of the blood to be oxygenated. . . . It increased the amount of ischemia. In other words, the blood that would have been able to get through ...


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