47 Pa. Commw. 554 | Pa. Commw. Ct. | 1979
Lead Opinion
Opinion by
Dorothy M. Hauck (claimant) appeals an order of the Workmen’s Compensation Appeal Board (Board) denying her fatal claim petition, filed pursuant to The Pennsylvania Workmen’s Compensation Act (Workmen’s Compensation Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §1 et seq. Her husband, Charles L. Hauck (decedent), allegedly died from anthracosilicosis contracted while employed in various anthracite mines in Pennsylvania. We affirm.
Decedent retired from Kocher Coal Company (Kocher), his employer since 1971, on March 31, 1976. On June 5, 1976, he was examined by Dr. William Darkes, who determined that claimant was totally disabled because of anthracosilicosis, an occupational disease under Section 108(q) of the Workmen’s Compensation Act, added by Section 1 of the Act of October 17, 1972, P.L. 930, 77 P.S. §27.1(q). Decedent died on November 7, 1976 before a petition for lifetime benefits could be filed.
Claimant, relying on Section 810 of the Vital Statistics Law of 1953 (Act), Act of June 29, 1953, P.L. 304, as amended, 35 P.S. §450.810, argues that the referee erred in not admitting the death certificate as evidence of the cause of decedent’s death. Section 810 provides, in pertinent part:
Any record or duly certified copy of a record or part thereof which is (1) filed with the department in accordance with the provisions of this act and the regulations of the Advisory Health Board and which (2) is not a ‘delayed’ record filed under section seven hundred two of this act [35 P.S. §450.702] or a record ‘corrected’ under section seven hundred three of this act [35 P.S. §450.703] shall constitute prima facie evidence of its contents----
Since death certificates are required to be filed with the Department of Health pursuant to Section 501 of the Act, 35 P.S. §450.501, and decedent’s certificate was neither a delayed nor a corrected record under the
Despite this language, there is some conflict and confusion in Pennsylvania and elsewhere on whether death certificates are admissible on the cause of death, as distinguished from merely the date and fact of death.
Claimant also argues that the referee capriciously disregarded the competent testimony of Dr. Darkes on the cause of decedent’s death. While it is true that Dr. Darkes testified unequivocally that decedent died from anthracosilicosis, cross-examination revealed that his opinion was based solely on his examination of decedent five months prior to his death. Indeed, Dr. Darkes candidly admitted that he was not present when decedent passed away, that he had not examined the body, and that he had no other objective evidence concerning the cause of decedent’s death than that decedent had anthracosilicosis. In view of this testimony and the fact that decedent could have died from a number of intervening causes of which Dr. Darkes would have been unaware, his testimony was speculative at best and properly disregarded by the referee.
Obdeb
And Now, this 6th day of December, 1979, the order of the Workmen’s Compensation Appeal Board, dated August 17,1978, dismissing the petition of Dorothy M. Hauck, is hereby affirmed.
The Commonwealth is a party by virtue of its liability under Section 305.1 of the Workmen’s Compensation Act, added, by Section 2 of the Act of December 6, 1972, P.L. 1627, 77 P.S. §411.1, for a percentage of the compensation due a claimant because of silicosis, anthracosilicosis, or coal worker’s pneumoconiosis.
See Heffron v. Prudential Insurance Co. of America, 137 Pa. Superior Ct 69, 8 A.2d 491 (1939); Griffin v. National Mining Co., 127 Pa. Superior Ct. 588, 193 A. 447 (1937); See also Annot., 21 A.L.R. 3d 418 (1968), superseding Annot., 17 A.L.R. 359 (1922), Annot., 42 A.L.R 1454 (1926), and Annot., 96 A.L.R. 324 (1935); 5 T. Wigmore, Evidence §§1642-1646 (Chadbourn rev. 1974).
Claimant asserts that Castor, supra, is dispositive of both issues presented here. While we find Castor controlling on the issue of
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent. Although it concludes that the referee erred in not admitting the death certificate as evidence of the cause of death, the majority holds that the error was nevertheless harmless. I cannot agree for two reasons. In the first place, Duquesne Light Co. v. Gurick, 46 Pa. Commonwealth Ct. 150, 405 A.2d 1358 (1979), holds that a doctor’s testimony that an occupational disease was “one of the causes of death” will support a claim for death benefits under Section 301(c)(2) of the Workmen’s Compensation Act, 77 P.S. §411(2). If the death certificate had been admitted, Claimant could have questioned Dr. Darkes as to whether anthracosilicosis was one of the causes of death. As it was, Dr. Darkes did try to explain the remarks on the death certificate as they related to causation. The referee did not allow him to do so, however, on the basis that the death certificate was not in
Where, as here, the orderly introduction of relevant evidence is thwarted at the outset by an erroneous ruling, the error is prejudicial and I would remand to the Board for a new hearing.