545 A.2d 438 | Pa. Commw. Ct. | 1988
Opinion by
Angela Gerris Henry (Claimant), widow, of Jesse Henry (Decedent), petitions for review of the order of the Workmen's Compensation Appeal Board (Board) dismissing her fetal claim petition. We affirm. ■
Decedent was employed by Mayer Pollock Corporation (Employer), a wrecking contractor, as a burner. On May 20, 1981, Decedent was burning paint on a job at the Franklin Mint when he inhaled lead fumes from the paint and contracted lead poisoning. Pursuant to a notice of compensation payable, Decedent received benefits for total disability in the amount of $262.00 per week. He successfully underwent chelation, treatments until his blood lead level returned to normal. However, Decedent continued to suffer headaches and dizziness which his treating physician attributed to hypertension.
Decedent died on May 2, 1983. Doctor Robert L. Catherman, the deputy medical éxaminer who performed the autopsy, opined that the cause of death was
It is uncontradicted that Decedent did not die of lead poisoning. Rather, it is Claimants theory of the case that Decedents lead poisoning caused depression, which led to heavy drinking, and that the heavy drinking caused or aggravated Decedents alcoholic cardiomyopathy, which in turn was a substantial cause of his death. The referee rejected this chain of causation as too tenuous and the Board affirmed.
■ Claimants case is supported by her testimony that Decedent had been a social drinker before his' incident of lead poisoning but began to drink as much as a fifth of liquor a day six or seven .months before he died. However, the referee chose to accept the opinion of Doctor Catherman that alcoholic cardiomyopathy requires many years of excessive abuse of alcohol, and that the degree of enlargement and damage to Decedents heart was not consistent with alcohol abuse of only six or seven months duration, or even of two years duration. (Deposition of Doctor Robert. L. Catherman taken 7/24/85 at 15, 16.) Consequently, the referee found that Decedents alcohol abuse predated his lead poisoning attack by several years.
Claimant argues that the referee erred in applying the substantial contributing factor test of McCloskey v. Workmen's Compensation Appeal Board (J.H. France Refractories, Inc.), 501 Pa. 93, 460 A.2d 237 (1983) to
We are unpersuaded that there is a need for a differ: ent standard in injury cases. Claimants .argument that “materially contributing” is a less stringent standard than “substantially contributing” is nothing more than an exercise in semantics. In Manuel v. N.L. Industries, 502 Pa. 329, 466 A.2d 606 (1983), the claimant was exposed to lead poisoning over the course of his employment as an occupational disease and later died of heart failure. The claimant showed that the lead poisoning weakened the decedents resistance to the symptoms of heart failure. Our Supreme Court had no difficulty in applying the McCloskey standard to deny recovery. The fact that in the present case a single attack of lead poisoning weakened Decedents resistance to alcoholism is not a sufficiently distinguishing factor to justify a new standard or permit recovery under McCloskey.
While Claimants physician and psychiatrist did present evidence that Decedents depression and headaches triggered excessive drinking, the referee. was perfectly justified in accepting Doctor Cathermans opinion that Decedents alcoholism predated his lead poisoning injury. Bruckner v. Workmen's Compensation Appeal Board (Lancaster Area Vo-Tech), 104 Pa. Commonwealth Ct. 290, 521 A.2d 980 (1987). None of
Order
Now, August 3, 1988, the order of the Workmen's Compensation Appeal Board at No. A-92695, dated July 10, 1987, is hereby affirmed.
