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HARBISON-WALKER REFRACTORIES AND UNDERWRITERS ADJUSTING COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (DRAKE) (04/27/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 27, 1989.

HARBISON-WALKER REFRACTORIES AND UNDERWRITERS ADJUSTING COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (DRAKE), RESPONDENTS

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.

COUNSEL

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.

Author: 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 provide substantial evidence

[ 125 Pa. Commw. Page 459]

    to support a finding that Decedent's occupational disease was a significant contributing factor in bringing about Decedent's death. Our scope of review, where the Board takes no additional evidence and both parties present evidence, is limited to determining whether constitutional rights were violated, an error of law was committed, or necessary findings of facts are supported by substantial evidence. Universal Trucking, Inc. v. Workmen's Compensation Appeal Board (Hassell), 112 Pa. Commonwealth Ct. 428, 535 A.2d 722 (1988).

The Pennsylvania Supreme Court in Kusenko set forth the following test:

Where there are multiple causes of death and the immediate cause was non-compensable, the requirements of ยง 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.

Id. at 107, 484 A.2d at 376 (quoting McCloskey v. Workmen's Compensation Appeal Board, 501 Pa. 93, 101, 460 A.2d 237, 241 (1983)). Petitioner contends that Dr. Maylock's testimony does not meet the requirements of this test because Dr. Maylock "could not state that any of the secondary causes were more important than any other one." Petitioner's brief at 6. Petitioner asserts that in order to satisfy the Kusenko test, Claimant needed to present medical evidence that Decedent's work-related silicosis was the substantial contributing factor rather than a substantial contributing factor. Petitioner further argues that Dr. Maylock's testimony that more than one secondary cause was a substantial contributing factor in bringing about Decedent's death makes Dr. Maylock's testimony equivocal. We cannot agree.

[ 125 Pa. Commw. Page 460]

There is no requirement in the Kusenko test that, to be compensable, an occupational disease must be the sole substantial contributing factor in bringing about death. Dr. Maylock testified that silicosis, emphysema, and sclerosis of the mesenteric artery all caused the anoxia that in turn caused the small bowel infarction that was the immediate cause of Decedent's death. Maylock deposition at 15, 40-41. Dr. Maylock testified that none of these was more significant than the others. N.T. at 40. However, Dr. Maylock testified that in his medical opinion all were major contributing factors to bringing about Decedent's death. Id. A medical expert's testimony is not equivocal because he opines that more than one factor was a substantial contributing factor in causing death. Dr. Maylock's testimony constitutes substantial evidence to support the referee's finding that Decedent's occupational silicosis was a substantial contributing factor in bringing about Decedent's death.

Accordingly, we affirm.

Order

And Now, April 27, 1989, the order of the Workmen's Compensation Appeal Board in the above captioned matter is affirmed.

Disposition

Affirmed.


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