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filed : July 8, 1988.


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 might not have been as completely oxygenated as if this had not occurred.

N.T. at 14. He opined that the extensive coal worker's pneumoconiosis was a contributing cause of death.

On the other hand, Dr. Nathaniel E. Rodman, who examined the slides and autopsy report of Dr. Krifcher and the clinical data of decedent, testified on behalf of the respondent. He found a tubercular lesion at least twenty or thirty years old, and that decedent had simple coal workers' pneumoconiosis but that the disease did not cause the heart attack from which decedent died. The referee elected to believe the opinion of Dr. Krifcher over that of Dr. Rodman and awarded benefits.

The Board, while recognizing that the referee had the right to accept the opinion of Dr. Krifcher, nevertheless held that his testimony did not meet the standard of proof required under Kusenko. The court in Kusenko stated:

[w]here 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.

506 Pa. at 107, 484 A.2d at 376.

We find that Dr. Krifcher's testimony was legally sufficient to meet the requirements of Kusenko.

However, having made the legal determination that the testimony was sufficient to go to the fact finder, it

[ 117 Pa. Commw. Page 496]

    becomes a factual question and should not be taken from the fact finder. Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977). The reason for this is that the word "substantial" is used to denote the fact that the respondent's conduct had such an effect in producing the harm as to lead a reasonable person to regard it as a cause for which the respondent should be held responsible. In other words, was the respondent's conduct a "substantial factor" or an "insignificant factor" in bringing about the injury. This is a factual question.

The term "substantial factor" is no stranger to the law in Pennsylvania. It is used in the legal sense to create liability in personal injury cases. Restatement (Second) of Torts § 431. "The determination of the issue simply involves the making of a judgment [based on the evidence,] as to whether the defendant's conduct, although a cause . . . is so insignificant that no ordinary mind would think of it as a cause for which a defendant should be held responsible." Ford, at 594-595, 379 A.2d at 114.

Here, the referee made a determination that the requisite causation was present. This determination was based on substantial evidence.

Accordingly, the order of the Board is reversed.


Now, July 8, 1988, the order of the Workmen's Compensation Appeal Board, Decision No. A-87355, dated April 4, 1986, is reversed.

Dissenting Opinion by Judge MacPhail:

I respectfully dissent.

In Kusenko v. Republic Steel Corp., 506 Pa. 104, 484 A.2d 374 (1984), our Supreme Court indicated that we erred in our opinion in that case,*fn1 when we applied

[ 117 Pa. Commw. Page 497]

    the "causal relationship" standards set forth in Evon v. Workmen's Compensation Appeal Board (U.S. Steel Corp.), 70 Pa. Commonwealth Ct. 325, 453 A.2d 55 (1982), rather than the "substantial, contributing factor" standard for secondary causes of death, first enunciated in McCloskey v. Workmen's Compensation Appeal Board, 501 Pa. 93, 460 A.2d 237 (1983).

In emphasizing that the substantial, contributing factor standard was that which should be applied, the Supreme Court said in Kusenko:

To hold that the occupational disease be the sole or direct cause of the disability or death . . . is entirely too strict a standard for a claimant to meet, the result being compensation in only the fewest number of cases. On the other hand to say that any contributing cause is sufficient no matter how slight is compensable . . . is too heavy a burden to place on industry. Such a standard would effectively reduce the Workmen's Compensation Act to a general health and insurance plan. This limitless liability is clearly not what the framers of § 302(a)(2) had in mind.

506 Pa. at 108, 484 A.2d at 376-377 (citations omitted).

In the instant case, the majority quotes partially from Dr. Krifcher's testimony. I consider the rest of what that witness said at the same point in his testimony to be dispositive of the issue now before us. The physician testified immediately following the testimony quoted on pages 2 and 3 of the majority's slip opinion as follows:

Q. How did you characterize that in your protocol as to its (coal workers' pneumoconiosis) role in the cause of death?

A. As I said, the main cause of death was arteriosclerotic heart disease with a thrombosis of the coronary artery and extensive myocardial

[ 117 Pa. Commw. Page 498]

    infarction. Then it is my opinion that the extensive coal workers' pneumoconiosis did contribute and was a contributory cause.

(Emphasis added.) Deposition of Dr. Krifcher at page 14.

That testimony is remarkably similar to that which our Supreme Court rejected in Kusenko.

A. Yes, it would be my opinion that because of the coal workers' pneumoconiosis that he was unable to ward off the bad effects of the bronchogenic carcinoma. In other words, the bronchogenic carcinoma would cause him to gradually deteriorate and lose his appetite, and things like that. And I think that the coal workers' pneumoconiosis would aggravate that -- would aggravate that in the progression of the symptoms from the bronchogenic carcinoma.

A. In my opinion, the direct cause of death was a bronchogenic carcinoma, and I felt that the coal workers' pneumoconiosis was a causative factor in his death.

(Emphasis added.) Footnote 8, page 6 of slip op. in Republic Steel Corp.

*fn1 This Court's opinion in Republic Steel Corporation v. Workmen's Compensation Appeal Board (Kusenko), was not reported but it was filed December 7, 1983 to No. 2157 C.D. 1982.

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