Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Floyd Drake, Deceased, Mary Kathryn Drake, Widow v. Harbison Walker Refractories, No. A-93426.
Raymond F. Keisling, Will, Keisling, Ganassi & McCloskey, for petitioners.
Marc S. Jacobs, with him, Wesley Johnson, Galfand, Berger, Lurie & March, for respondents.
Judges Palladino and Smith, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino.
[ 125 Pa. Commw. Page 457]
Harbison-Walker Refractories (Petitioner) appeals from a decision of the Workmen's Compensation Appeal Board (Board), which affirmed a referee's grant of the fatal claim petition of Mary Kathryn Drake (Claimant). We affirm.
Claimant's husband, Floyd Drake, (Decedent) died on April 30, 1982. At the time of his death, Decedent was receiving partial disability benefits from Petitioner as a result of silicosis. Decedent had worked for Petitioner for 42 years and during that time was exposed daily to silica dust and sand. Claimant filed a fatal claim petition, pursuant to section 301(c) of The Pennsylvania Workmen's Compensation Act,*fn1 alleging that Decedent's death was
[ 125 Pa. Commw. Page 458]
the result of severe silicotic pneumoconiosis that was caused by Decedent's employment with Petitioner.
The referee determined that while the immediate cause of Decedent's death was an infarction of his small bowel, Decedent's work-related silicosis was "an equal contributory factor, along with the other disease processes in causing decedent's death." Referee's June 7, 1984 decision, findings of fact 10, 14. The referee granted Claimant's petition. The Board, on November 1, 1985, remanded the case to the referee to determine if the grant of Claimant's petition was appropriate in light of the Pennsylvania Supreme Court's decision in Kusenko v. Republic Steel Corp., 506 Pa. 104, 484 A.2d 374 (1984),*fn2 that when there are multiple causes of death and the immediate cause is not compensable, the occupational disease must be a substantial contributing factor among the secondary causes in causing death.
On remand no new medical evidence was introduced. The referee adopted the medical testimony of Claimant's expert, Dr. John H. Maylock, and found that "occupationally acquired silicotic pneumoconiosis was a major contributing factor to the decedent's death" and that "a major contributing factor is a substantial contributing factor." Referee's April 16, 1987 decision, findings of fact 10, 11. The referee again granted Claimant's petition. Petitioner appealed to the Board, contending that Dr. Maylock's testimony did not satisfy the proof required by the Supreme Court's decision in Kusenko. The Board concluded that Dr. Maylock's testimony provided competent evidence to support the referee's finding that Decedent's silicotic pneumoconiosis was a substantial contributing factor in bringing about death.
On appeal to this court, Petitioner contends that Dr. Maylock's testimony does not ...