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JAMES BELL v. WORKMEN'S COMPENSATION APPEAL BOARD (GATEWAY COAL COMPANY) (08/02/88)

decided: August 2, 1988.

JAMES BELL, JR., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (GATEWAY COAL COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of James Bell, Jr., v. Gateway Coal Company, No. A-87563.

COUNSEL

Benjamin L. Costello, Yablonski, Costello & Leckie, for petitioner.

Raymond F. Keisling, Will, Keisling, Ganassi & McCloskey, for respondent, Gateway Coal Company.

President Judge Crumlish, Jr., and Judges Craig, Doyle, Barry, Palladino, McGinley and Smith. Opinion by Judge Doyle.

Author: Doyle

[ 118 Pa. Commw. Page 321]

James Bell, Jr. (Claimant) petitions for review of an order of the Workmen's Compensation Appeal Board (Board), which reversed a referee's decision finding Claimant partially disabled due to a combination of work-related anthracosilicosis and/or coal worker's pneumoconiosis and non-work-related cardiovascular disease.

Claimant was employed in the coal industry from 1937 to October 26, 1979 with his last employment being with the Gateway Coal Company (Employer). Claimant was exposed to coal dust throughout this period. On February 4, 1982, Claimant filed a claim petition for workmen's compensation benefits for partial disability resulting from work-related pneumoconiosis or anthracosilicosis. Claimant submitted two reports from J. D. Silverman, M.D., in support of his claim. Dr. Silverman's first report (February 12, 1982), diagnosed Claimant as suffering from: (1) anthracosilicosis, and (2) history of hypertension, and (3) possible early cirrhosis. The second report (July 31, 1982), diagnosed Claimant as suffering from: (1) anthracosilicosis, and (2) a history of hypertension, and (3) coronary artery disease. Dr. Silverman concluded his second report by stating:

This patient is totally and permanently disabled from any type of gainful employment on a combined diagnoses of pulmonary and cardiovascular disease with each system making some contribution to his overall disability. His anthracosilicosis has occurred as a result of his total and cumulative exposure to dust in the coal mines over a period of approximately forty years.

The referee held this evidence sufficient to support an award of benefits.

[ 118 Pa. Commw. Page 322]

Employer appealed to the Board challenging solely the competency of Dr. Silverman's reports. The Board reversed the referee's decision, holding that under our Supreme Court's decision in McCloskey v. Workmen's Compensation Appeal Board, 501 Pa. 93, 460 A.2d 237 (1983), Claimant was required to show that his occupational disease (anthracosilicosis and/or pneumoconiosis) was a " substantial contributing factor " to his disability. The Board then held Dr. Silverman's reports were not sufficiently unequivocal to satisfy this standard and were, thus, incompetent to support the award.

Claimant appealed, and this case was initially argued to a panel of this Court on March 22, 1988. Subsequently, we ordered that the case be submitted on briefs to the Court en banc to resolve an apparent conflict in our precedents.*fn1

Two major questions are presented by this case: (1) whether the McCloskey "substantial contributing factor" causation test is applicable to disability as well as death cases, and (2) if the McCloskey causation standard is applicable to disability cases, is it the same standard of causation as is currently applied in disability cases generally where the disability is ...


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