86 Pa. Commw. 198 | Pa. Commw. Ct. | 1984
Opinion by
Harry S. Fessler (Decedent) suffered a myocardial infarction and died February 10, 1976, in the course of his employment as an insurance underwriter with Nationwide Insurance Company (Employer). His widow, Virginia Lee Fessler (Claimant), filed a fatal claim petition. The matter was first heard by a referee who denied benefits in March of 1978. When the Claimant appealed, the case was remanded by the Workmen’s Compensation Appeal Board (Board) for further findings in an order dated December 7, 1978. Although the referee fixed a date for a further hearing, no evidence was presented. Based upon arguments of counsel heard at that time, the referee in
There seems to be basic agreement on some of tbe critical facts in tbis case. Tbe Decedent died at work while in tbe midst of a telephone call on tbe Employer’s business with another employee. He bad complained of chest pains to tbe Employer’s nurse tbe morning of bis death. Her advice to him to call bis physician was not heeded. Decedent bad been examined for heart problems in tbe summer of 1974. He was under a physician’s care for more than a year. He was diagnosed as having atherosclerosis and hypertension. Coronary heart disease was suspected. Tbe doctor recommended that be refrain from working for awhile. Eventually, however, be went back to work part-time and then full time in November of 1975. He died of a heart attack or myocardial infarction.
Claimant’s evidence consisted of her own testimony, testimony from tbe Employer’s nurse, tbe Employer’s assistant personnel manager, tbe Decedent’s immediate supervisor and a deposition from tbe Decedent’s treating physician, Dr. Jackson.
12. That Claimant failed to produce medical evidence to prove a causal relationship between decedent’s death and his employment on February 10,1976.
13. That Claimant failed to meet the burden of proof to establish decedent suffered an injury while in the course of his employment with the defendant on February 10, 1976, within the meaning of the Workmen’s Compensation Act.
He concluded that since the Claimant had failed to establish an injury, the claim petition should he denied.
The basis of Claimant’s first appeal to the Board in 1978 was that the referee was using the pre-1972 amendment to Section 301(c) of The Pennsylvania Workmen’s Compensation Act,
As we have noted, no additional evidence was received by the referee at the remand hearing. The referee’s critical findings following the remand were:
15. That Claimant failed to present evidence of record to show any specific incident or particular action relating to decedent’s alleged stress of work.
*202 16. The evidence of record fails to support and substantiate the alleged stress, allegedly encountered by defendant, (sic) in his employment with the defendant, was the cause of decedent’s myocardial infarction.
17. That claimant failed to produce evidence of record to support and substantiate a causal relationship between decedent’s death and his employment with the defendant on February 10,1976.
18. That claimant failed to prove her decedent-husband suffered an injury on February 10, 1976, within the meaning of the "Workmen’s Compensation Act, as amended.
Again the Claimant appealed to the Board on the ground that the referee was still applying the “accident” test and again the Board agreed with the Claimant. Without any reference to the referee’s specific findings regarding causal relationship, the Board noted that stress itself and the injured person’s inability to deal with it can be causally related to employment. Westinghouse Electric Corporation v. Workmen’s Compensation Appeal Board, 59 Pa. Commonwealth Ct. 558, 430 A.2d 399 (1981). The Board then remanded this case to the referee with instructions that “either party may submit any additional evidence which is germane to the case.” (Emphasis added).
The referee dutifully held a third hearing at which the deposition of Dr. Moffitt, a medical witness for the Employer, was received over Claimant’s objection. This witness, who testified from medical records only, stated that in his opinion the Decedent’s stress at work did not contribute significantly to his heart attack and that the Decedent’s heart attack was the result of the progression of the hardening of the
The Claimant appealed, to the Board a third time and this time the Board finally noted that the referee had ind.eed found that the Claimant had failed to prove the causal relationship between the Decedent’s employment and his heart attack and that the referee was persuaded by the testimony of Employer’s medical witness. Citing case law which holds that the referee is the ultimate fact finder, the Board denied the claim.
This rather extensive review of the proceedings was necessary to highlight the fact that in our opinion, neither of the two remands in this case was necessary. The Board may remand when ‘ ‘ the findings are not supported by the evidence or where a necessary finding was not made.” Lehigh Valley Coal Sales Co. v. Workmen’s Compensation Appeal Board, 66 Pa. Commonwealth Ct. 59, 64, 443 A.2d 1339, 1342 (1982). In the instant case, it was an error of law for the Board to remand on either occasion because the referee had made the appropriate fact finding pertaining to the causal connection after the first and second hearings. We conclude, accordingly, that the deposition of Dr. Moffitt should not have been considered by the referee or the Board.
We will, accordingly, review the medical testimony of Dr. Jackson bearing in mind that in this appeal since the referee and the Board found that the Claimant failed to meet her burden, we must affirm unless constitutional rights were violated, an error of law was committed or competent evidence was capriciously
When no obvious causal connection exists between an employee’s condition and a work injury, unequivocal medical evidence must be produced to establish that connection before the employee is entitled to workmen’s compensation benefits. Pines Plaza Lanes v. Workmen’s Compensation Appeal Board, 61 Pa. Commonwealth Ct. 139, 433 A.2d 165 (1981). Where the issue in a workmen’s compensation case is, as it is here, whether death was a product of a work related injury, a pre-existing pathology, or both, the Claimant must establish by unequivocal medical evidence that the Decedent’s work activities aggravated the pre-existing condition, thereby contributing to his death. Modern Transfer v. Workmen’s Compensation Appeal Board, 47 Pa. Commonwealth Ct. 592, 408 A.2d 900 (1979).
Our Court has recently reviewed the unequivocal medical testimony rule in Philadelphia College of Osteopathic Medicine v. Workmen’s Compensation Appeal Board (Lucas), 77 Pa. Commonwealth Ct. 202, 206, 465 A.2d 132, 135 (1983), by holding that “as to facts which a claimant must prove by medical evidence, it is sufficient that his medical expert, after providing a foundation, testify that in his professional opinion or that he believes or that he thinks the facts exist. ’ ’
We have also held that the fact finder must determine from the entire medical testimony whether or not the Claimant’s burden has been met, rather than from selected portions thereof. Bardo v. Workmen’s Compensation Appeal Board, 62 Pa. Commonwealth Ct. 497, 437 A.2d 456 (1981). Whether or not medical evidence is equivocal or unequivocal requires a determination of its competency, not its credibility,
In light of that guidance from our previous cases, our conclusion is that Dr. Jackson’s testimony viewed as a whole, is sufficient to sustain Claimant’s burden and that the referee and the Board capriciously disregarded it. Dr. Jackson was testifying from a history he had personally recorded and from treatment he personally administered. The gist of his testimony is that the Decedent was an accident waiting to happen. There was ample evidence to support the doctor’s conclusion that the Decedent was under constant stress which was job related. Even though the Employer gave the Claimant a less stressful job following his first lay-off due to heart and hypertension problems, the Claimant not only insisted upon working full time but also worked overtime just prior to his fatal attack. The doctor’s testimony was positive regarding the fact that the Decedent died from a heart attack and that there was enough work-related stress to be a very significant factor in the myocardial infarction. There is a fine line, indeed almost indistinguishable at times, between clearly unequivocal medical testimony and medical testimony which is couched in less than positive terms because the witness is unable to rule out all other factors with reasonable medical certainty when expressing a medical opinion. The language focused upon by the referee does not in this case render the doctor’s testimony equivocal because medical science is not capable of absolute certainty in all matters and some opinions necessarily must be judgmental.
Order reversed.
Order
The order of the Workmen’s Compensation Appeal Board dated December 1, 1983 and entered to Docket No. A-84822, is reversed.
While the delays in this case may have some proper basis, we must observe that it is not in the best interest of justice for cases to be in- the administrative process for more than seven years before a final decision is reached especially where the record is so minimal. The issue is a difficult one to be sure, but undue contemplation does not make it any easier to resolve.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §411.
