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Kusenko v. Republic Steel Corp.
484 A.2d 374
Pa.
1984
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*1 484 A.2d KUSENKO, Kusenko, Appellee, of Mike Minnie Widow CORPORATION, Appellant. REPUBLIC STEEL Pennsylvania. Supreme Court Argued Sept. 1984. Decided Nov. 1984. Reargument Denied March *2 Becker, Pittsburgh, appellant. for E. Scott Henkel, I. Rich Richman, Stephen F. William I. Stephen Bethlehem amici curiae Partners, for Washington, man & Cas. Corp.; Westmoreland Bethlehem Steel Corp.; Mines & Con Co.; Aggregate Co.; Pennsylvania McGraw-Edison Co.; Inc., Resources, Amoco Oil Ass’n; Emway crete Energy Services. Cooper Chaban, Washington, appellee. for R.

Lawrence McDERMOTT, FLAHERTY, LARSEN, NIX, C.J., Before PAPADAKOS, HUTCHINSON, JJ. ZAPPALA OPINION McDERMOTT, Justice. n of causation which is the standard appeal At issue this 301(c)(2)of under Section of benefits triggers recovery facts are set forth Act.1 The Compensation the Workmen’s below. petition by claim a result of fatal

This case arose as the death of her husband after (appellee) Minnie Kusenko in the coal (decedent). Decedent had worked Mike Kusenko Repub- employ years for mining industry thirty-six receiving After evidence Corporation (appellant). lic Steel died as a sides, found that decedent the referee both miner’s pneumoconio- and/or coal of anthracosilicosis result in the mines. working to coal dust while exposure sis due to certifi- on the death cause of death stated The immediate lung. Coal worker’s however, carcinoma of cate was causes.” significant “other listed as was pneumoconiosis amended, 736, III, 301(c), 2, 1915, Act of § P.L. art. 1. Act of June 263, 4, 5, 1974, 782, § No. December P.L. 106

The referee’s award was affirmed Pennsylvania Compensation Appeal (Board). Workmen’s Board The Board their decision on Crucible Steel Inc. v. Work based Compensation Board, men’s Appeal Pa.Cmwlth. (1982) A.2d 1199 that the stating pneumoco decedent’s niosis, which a major death, was reason for his ultimate sufficient to meet the standard of causation for fatal claim benefits. The affirmed, Commonwealth Court applying the standard it set forth in Evon v. Compensation Workmen’s Appeal Board, (1982). Pa.Cmwlth. 453 A.2d 55 In order to recover benefits under the Evon standard, all that is required is a “causal relationship” between the disease and the standard, death or In disability. applying this Commonwealth chose to ignore Court the standard set forth aby plurality of this McCloskey Workmen’s Court Board, Appeal *3 (1983) which that require would the occupational disease be “substantial, contributing among factor the secondary Id., causes bringing about death.” 501 Pa. at 460 A.2d at 241. Appellant herein petitioned this Court for appeal and granted consideration, allocatur. After we reverse we and remand to the Commonwealth Court for a decision consistent with this opinion.

The primary import this case is to set forth a definitive standard for the determination of benefits under the Work- men’s Compensation Act for occupational deaths related to hazards. Specifically, when a non-compensable disease of life results, which is unrelated to work intervenes and death what the occupational role must play disease so that bene- fits are forthcoming?

Resolution of this issue necessarily requires examina- tion of the statutory language which governs recovery of benefits in a Compensation Workmen’s case. 301(c)(2)

Pursuant to of the Act: The terms “injury”, “personal injury”, “injury arising in the course of his employment”, act, as used in this include, shall unless the context clearly requires other- wise, occupational disease as defined in section 108 of this Provided, act: that whenever occupational disease is the basis for for compensation, or death disability under this act, it apply shall only disability death resulting from such disease and occurring within three hundred weeks after the last date of employment in an occupation or industry to which he exposed to hazards of such provided further, disease: And if the employe’s such, compensable disability has occurred within period, his subsequent death as a result of the disease shall likewise be compensable. The provisions of this para- (2) graph shall apply only with respect to the disability or death of an employe which results whole or in part from the employe’s exposure to the hazards of occupa- tional disease... 411(2). P.S. §

In McCloskey, supra, we focused on the lan- statutory guage which provided that this section shall apply death which results “in whole or in part from the employee’s exposure to the hazard of occupational Id., disease” at 240; A.2d at rejected we the standard of Consolidation Coal v.Co. Workmen’s Ap- Board, peal 37 Pa.Cmwlth. (1978) i.e. that 301(c)(2) requires that death be “immediately caused” by the occupational disease. We also implicitly rejected the rather Evon, liberal standard supra, which was relied upon in this case Commonwealth Court.

The test announced in McCloskey, supra, which we reaf- firm today, provides that:

Where there are multiple causes of death and the immedi- ate cause was non-compensable, requirements the of 301(c)(2) may be met by a showing unequivocal with § medical evidence that the deceased suffered from an occupational disease and substantial, that it was a con- tributing factor among the secondary causes in bringing about death. 93, 101, 460 A.2d 241.

We are convinced that this standard accurately reflects the intent of the legislature, and balances competing the

108 parties.2 interests of the To occupational hold that disease be or direct the sole cause disability of death Coal, supra, e.g. Consolidation entirely is too strict a meet, standard for a claimant result being compensa- tion in only the fewest number of cases. theOn other hand to say that is any contributing cause sufficient no matter Evon, slight how is compensable e.g. supra, is too a heavy burden to on a place industry. Such standard would effec- tively reduce the Workmen’s Act to a Compensation general health plan. and insurance This limitless liability clearly is not 302(a)(2) what the framers of had in mind. § McCloskey

We therefore hold that the standard shall applied those cases death involving benefits under 301(c)(2) of the Workmen’s Act. Compensation 411(2).3

In light of disposition, our we reverse and remand to the Commonwealth Court for a decision this consistent with opinion.

LARSEN, J., filed a dissenting opinion. FLAHERTY, J., opinion. filed a dissenting HUTCHINSON, J., dissenting filed a opinion. years, 2. We note that in recent of causation standards similar to adopted by McCloskey one set forth in have been a number of states coping occupational problems with the related to disease and death. example, Supreme For the Nebraska has held Court that in order occupational receive benefits the uting disease must be a substantial contrib- Omaha, disability City factor to Mann v. 211 Neb. of (1982). Virginia Supreme requires N.W.2d 454 The West Court that a occupational major claimant establish that the disease be a contribu- Troxell, ting factor. Elsie Widow Lewis Troxell v. State Workmen’s Coal, (per Commissioner and Consolidation curiam 14, 1983, 15951). opinion Supreme filed December No. In involving disability Court of North Carolina in a case cotton dust as a result of exposure disability arising held that in order for occupational compensable showing to be there must be disease occupational significantly disability. disease contributed to that Yarn, Rutledge Corp./Kings N.C. Tultex 301 S.E.2d 359 (1983). Although join opinion, Mr. Justice Hutchinson does not this we note agrees expressly that he with the standard causation articulated. Hutchinson, Dissenting Opinion, See J.

109 LARSEN, Justice, dissenting opinion. Court, of this in responsibility The

I paramount dissent. Act, is to under the Workmen’s arising cases to effec- its order apply provisions construe and liberally and humanitarian its remedial nature and implement tuate Co., 497 v. Electric Philadelphia Krawchuk objectives. 120, (1981); Statutory 627 Construction 115, 439 A.2d Pa. 1984-85). I 1928(c) 1972, (pamphlet 1 Pa.C.S.A. Act of § application and majority’s that the construction believe these remedial and 301(c)(2) ignores of the Act section and, the doing, exaggerates in so objectives humanitarian of the worker. employer expense' of the at the interests Court’s initially rejects Commonwealth majority The Con 411(2), in 301(c)(2),77 of section P.S. interpretations § Compensation Appeal Coal Co. v. Workmen’s solidation 412, (1978) 14 as (WCAB), 37 Pa.Commw. 391 A.2d Board WCAB, v. 453 and Evon strict”, 70 Pa.Commw. “too In “to set forth a (1982) as too liberal”. order A.2d 55 of death benefits standard for the determination” definitive Act, 301(c)(2) of the and to “balance under section opinion employers, slip interests” of workers and competing the standard of causation majority adopts 2 and at opinion (joined only in Mr. McDermott’s announced Justice McClos Nix) in Justice, Mr. then —Mr. now Chief Justice by (1983), WCAB, 93, 101, A.2d 241 Pa. key namely: immedi- causes of death and the multiple there are

Where requirements non-compensable, ate cause was unequivocal 301(c)(2) showing be met a with may suffered from medical evidence that the deceased substantial, con- and that it was a occupational disease bringing causes in secondary factor tributing among death. about

At__ abstract, I causation

In the this standard of might accept reasonably 301(c)(2) straightforward under section interests of worker conflicting fair accomodation of however, abstract, but not deal in the employer. We do *6 the world of real people and real situations. In applying the standard to deny above benefits to claimants such as widow, Mr. I McCloskey’s submit that the majority has added a hidden element to its standard that eliminates from a class coverage significant of deserving claimants. In practical the application, standard of causation adopted by the is neither as majority today “definitive” as intended nor as fair an accomodation of conflicting interests as it be; purports is, rather, it a standard close unacceptably to the “too strict” Consolidation Coal standard which the majority purports to reject.

My point departure with the lies majority with the “substantial”, the meaning given word a meaning which can garnered the only by observing application of the “sub- stantial, factor” contributing particular standard to circum- stances. In application, the denies majority coverage to a claimant whose decedent has contracted an occupational disease that has “merely” accelerated or aggravated a non-compensable disease which is the immediate cause of Observing death. the operation of the majority’s standard in WCAB, McCloskey glean v. we supra, hidden mean- ing of “substantial, “substantial” —to be considered a con- factor”, tributing that, medical must testimony establish occupational disease, but death would not have for occurred. requires Thus majority degree of exact- that, itude as the legislature recognizes, medical science is presently incapable of supplying. To demonstrate this I point, quote shall in my dissenting opinion McClos- WCAB, key 105-117, at 501 Pa. supra (footnotes omitted). Act,

“Under the is compensation available for claimants or dependents their for personal injury to the or employee for death by injury in the course of employment. 301(c)(1), 411(1) Section in provides, P.S. rele- § vant portion:

“The terms ‘injury’ ‘personal and as used in injury’, this act, shall be construed to mean an to an injury employe, regardless previous condition, his physical arising

Ill thereto, and employment his related and the course of from the naturally such or infection results disease reactivated or accelerated injury aggravated, is and death is mentioned as a cause wherever injury; act, for under this it shall mean death compensation only effects, from such and its resultant resulting injury three hundred weeks after the occurring injury, within added). (emphasis 301(c)(2) added, 411(2),

“In section P.S. § diseases provision occupational which embraced within provides, portion: That section relevant ‘injury’ concept. “The aris- ‘injury,’ ‘personal injury,’ ‘injury terms act, as used in this *7 ing employment,’ the course of his include, shall unless the context other- clearly requires wise, in of occupational disease as defined section 108 this Provided, act. That whenever disease is occupational compensation, disability basis or death for for act, this or apply only disability under it shall death occurring disease and within three resulting such from employment hundred weeks after the last date of or occupation industry exposed to which he was to haz- further, ards of such And That if the provided disease: has occurred employe’s compensable disability within period, such his death as a result of the subsequent disease shall likewise The of compensable. provisions (2) paragraph respect this shall with to the apply only or death disability employe of an which results in whole or in part employe’s exposure to the hazard of 30, occupational after June 1973 employment disease by Pennsylvania covered Workmen’s added). Act. (emphasis This Court has held that an need not be the injury

“... sole or exclusive cause of the Hilton disability, Halaski v. 313, nor, Hotel, 319, (1979), 487 Pa. A.2d 367 as the 409 acknowledges, occupational does an dis- majority injury need of death. ease to be the sole or exclusive cause E.g., 70, 885, WCAB, Elliott v. 57 425 A.2d 887 Pa.Commw. (1981). Moreover, it is under the Act if the injury sufficient

112 (including disease) an occupational ‘aggravates, reactivates or accelerates’ a preexisting condition which preexisting condition was the primary immediate or cause of disability or death. See WCAB v. Bernard S. 411(1), § Co., Pincus and Halaski v. 286, (1978) 479 Pa. 388 A.2d 659 Hotel, Hilton supra 318-19, (‘it at 487 Pa. A.2d 409 367 is sufficient if the injury materially contributed to the disabili- rather ty, than the disability resulting from the natural progression condition.’) of the preexisting particular

“Of importance to our determination is the Bashline, this Court Hamil v. principle enunciated 256, 481 Pa. (1978) followed consistently in medical malpractice cases. See Jones v. Montefiore Hospital, and Gradel v. (1981) A.2d 920 Inouye, (1980). Pa. A.2d 674 Hamil v.

“... Defendants argued their [in Bashline] cause negligence did not the myocardial infarction even though may have increased the risk of harm to the it 323(a)

decedent. on section of the Relying Restatement (Second) Torts, Negligent Performance of Undertaking Services, to Render this rejected Court defendants’ narrow causation, theory 269, 273, and at 481 Pa. 392 A.2d held:

“We agree with the view of the Court Superior majority Bashline I that the effect of expressed in 323(a) is to *8 relax the degree of certitude of normally required plain- tiff’s evidence in order to make a case for the jury whether a defendant may be held liable for the plaintiff’s injuries: Once a has plaintiff introduced evidence that a negligent defendant’s act or omission increased the risk of harm person plaintiff’s to a in position, and that the sustained, harm was in fact question it becomes a for the jury as to whether or not that increased risk was a substantial in producing factor the harm.

$ ‡ [*] [*] [*] n [*] “In light of our of interpretation 323(a), Section it follows that where medical is a causation factor in a case Section, coming within that it is not necessary that the plaintiff medical evidence—in addition to that introduce already adduced to defendant’s conduct increased prove the risk of harm —to establish that assert negligence Rather, ed resulted once plaintiff’s injury. jury is apprised that of likelihood defendant’s conduct result ed in plaintiff’s harm, that Section leaves to the jury, not the task expert, balancing probabilities. medical of In so we do saying not intend to undermine the well-es degree tablished of of standard ‘reasonable medical cer tainty’ accepted as the norm for medical on opinions But it causation. we think would be unreasonable in this of type expect unrealistic case to a physician state degree with a of medical certainty’ ‘reasonable what might (Section 323(a)) happened recog have when law nizes the contingencies involved. D. Dan generally See ner Segall, and E. Mediocolegal Causation: A of Source Professional Misunderstanding, 3 Am.J.L. Med. 303 & (1978). there issue Where is at of medical adequacy services rendered in fact a situation to which Section 323(a) prima therefore, applies, a case of is liability facie established where medical expert testimony presented is to the did, effect that defendant’s conduct with a reason able degree certainty medical increase the risk that the harm sustained by plaintiff would occur. held, “This Jones v. Court further Hospi- Montefiore

tal, supra at 494 Pa. 431 A.2d 920: “Proximate cause term art, is a and may be estab- lished by evidence a that defendant’s act or negligent failure to act was a substantial bringing about factor the harm plaintiff. inflicted upon Pennsylvania law has long substantial recognized be, this not need factor as the i.e., factor, trial court incorrectly charged, the only result,’ ‘that cause which ... produces the (citations omitted) A plaintiff need not every possible expla- exclude nation, and ‘the fact that some cause other concurs with the negligence of the defendant in producing an injury does not relieve defendant he liability unless can *9 show that such other cause produced would have the v. Brod- negligence.’ Majors of his independently

injury A.2d 873 at 878 Hotel, 265 at head (1965). adopt me that this Court would

“It is inconceivable compensation in workmen’s of causation standard stricter cases decided under Sec- malpractice than medical cases recognizes a That section 323(a) the Restatement. tion to render undertaking of one part the on higher duty ordinary negli- of the a relaxation justifies services which the and Surely statutory causation. gence standards to provide to his employer employees of an obligation moral no more working justifies environment conditions and safe under the Workmen’s a standard stringent which we of the liberal construction Act, light especially Act. must give 301(c)(2), 77 language of Section ‘resulting

“The from’ finding of not a referee’s 411(2), preclude does surely P.S. § and injury or death disability a causal connection between disease) the medical testi- where occupational (including materially contributed that the disease establishes mony Hotel, supra at 487 Pa. Halaski v. Hilton death, WCAB, 52 Pa.Comm. Steel Crucible factor (1980), a substantial or was 165, 415 A.2d 458 accelerating’) reactivating, (‘aggravating, increasing may harm have been which employee harm to the risk of non- condition or some other ‘caused’ immediately more 301(c)(1) See ailment. Section occurrence or compensable Bashline, supra. Hamil v. treatise, Workmen’s Compensa- “In Professor Larson’s following observa- 13.11, author makes Law, tion tions: comprises cases of medical-causation group

“The second compensa- the primary existence of in which the the cases of an the effects exacerbates way in some injury ble n The causal or disease. medical weakness independent complex, indirect or more may cases in these sequence present in fact connection is the causal long but as *10 subsequent of the condition is compensability beyond question.

[******] compensable produces that injury condition “[W]hen normal processes might interferes with curative that have condition, preexisting independent pro- alleviated the gression independent of the is compensable..... condition (20 “It is also of note that worthy regulations federal 718.205) pertaining CFR to benefits to whose miners § pneumoconiosis death was to provide: due “(b) Death be due to if pneumoconiosis will considered any of the met: following criteria is

“(1) competent Where medical evidence established that the miner’s death due to pneumoconiosis, was

“(2) Where death due multiple including to causes pneumoconiosis and it is not to medically dis- feasible tinguish which disease caused death or the extent which pneumoconiosis contributed to the cause of death____

[******] “(c) purpose section, For the of this death shall be con- sidered to due to pneumoconiosis where the cause of death is to or significantly aggravated by pneu- related moconiosis.

“A related consideration in this case is the issue of the sufficiency of the testimony medical regarding causa- ____ tion

“In the of causation, realm ‘sufficient evi- competent dence’, means the expert medical testi- mony that, must establish no no more —and less—than to a degree reasonable of medical certainty, the death or disabili- ty was connected to causally injury an occu- (including pational disease). No “magic words” are so required long as the words chosen professional convey opinion causation degree to that certainty. reasonable medical WCAB, Wilkes-Barre v. 54 Pa.Commw.

(1980). course, And of the referee’s determination whether

the medical testimony suffices to demonstrate causation is entitled to substantial deference as the Act has vested the referee with broad discretion in assessing credibility of witnesses and making findings fact. Halaski v. Hilton Hotel, supra 487 Pa. at 409 A.2d 367.

[******] “I would hold that the expert medical testimony establish- es, to a degree reasonable of medical certainty, that Mr. McCloskey’s death resulted from his occupational disease *11 (silicosis) in that silicosis increased the risk of harm from infarction, the myocardial thus aggravating accelerating independent, preexisting condition. Sufficient competent exists, therefore, evidence to support referee’s finding that silicosis ‘significant, was a contributing causative in factor the death’ of Mr. and McCloskey to sustain the award of benefits. I

“Finally, believe that the expert medical testimony quoted above also meets the majority’s standard of causa- tion, namely, ‘unequivocal that medical evidence’ establishes that silicosis ‘substantial, existed and awas contributing in factor’ bringing about death.

inAs I case, believe in McCloskey, that the instant there “sufficient, competent record, evidence” on the 834, support to the referee’s findings that Mr. Kusenko became disabled and died as a result coal miner’s pneu- of moconiosis and that the majority’s standard of causation 301(c)(2) under section has been satisfied. I Specifically, would hold unequivocal that medical evidence establishes that an occupational disease, coal worker’s pneumoconiosis, existed and “substantial, that the disease was a contribu- factor ting among the secondary causes in bringing about death.”

Mr. Kusenko had for worked some 43 in years the coal industry, 36 of those years for Republic Steel. Following hearings, the workmen’s compensation referee made the following of fact: findings credible,

SEVENTH: Based upon competent and suffi- cient medical evidence of record in this case from Dr.

117 on Referee finds a fact that Thomas Connelly, P. your 1, permanent- 1977, totally became June the deceased coal anthracosilicosis and/or a of ly disabled as result his total resulted from workers’ which pneumoconiosis employed to coal dust while exposure and cumulative the coal industry. credible, sufficient competent

EIGHTH: Based on Dr. Thomas medical this case evidence record fact the Claim- as a P. Referee finds Connelly, your and/or a result of anthracosilicosis ant’s husband died as and cumu- total coal workers’ due pneumoconiosis working expe- throughout dust his exposure lative coal rience. referee, fact- “only legitimate findings by

These finder”, (Bethlehem Corp.), Steel Garcia v. WCAB by the (1983), affirmed 342, 344, A.2d were com- Board, is workmen’s preeminent whose ... “power WCAB, at supra pensation proceedings.” McCloskey McDermott, 237 n. (Opinion Pa. n. 460 A.2d disturb those reviewing court cannot J.) Accordingly, “sufficient, evi- competent the record lacks findings unless *12 to them. support dence” rendered treating physician, Mr. Kusenko’s Connelly,

Dr. proceedings: in the instant following testimony June, in his did show Now, X-rays I him saw A. when I had him Pneumoconiosis, and when Coal Workers Function Test was abnor- hospitalized, Pulmonary his opinion me to form an these factors led mal—and permanently disabled totally he was and June that Pneumoconiosis. because of Coal Workers # Jit [*] [*] sis [*] certainty of medical degree to to a you Are able state Q. Function Pulmonary on abnormality that these any Pneumoco- Workers to Coal Studies was attributable lung to cancer? opposed niosis as would both they would they I would feel that A. both— causing a factor abnormalities. Q. you greater Are which one was the say to able

factor? A. I would Workers Pneumoconiosis think the Coal

would be factor. greater Reproduced and 53a. Record at 51a Doctor,

Q. do effect Mr. opinion have an as to what you

Kusenko’s pneumoconiosis coal would have workers’ death had on his to work at time of his had ability he not bronchogenic had carcinoma? Yes, ‘77,

A. I Mr. and I examined Kusenko June

felt at he from coal time that was disabled disability and his pneumoconiosis, workers’ I felt say total and at that I would at time. So permanent death, bronchogenic the time had he had of his not totally felt carcinoma, I have that he was would pneu- due to disabled the coal workers’ permanently moconiosis. Doctor, Mr.

Q. of whether or not Kusenko regardless pneumoconiosis, had coal would bron- workers’ proved fatal? chogenic eventually carcinoma have In my opinion, probably A. it would have. effect, to if Mr. opinion any, Do as what

Q. you have had pneumoconiosis Kusenko’s coal workers’ when he died? Yes, of the it coal my opinion

A. would be that because pneumoconiosis that he was unable ward workers’ the bronchogenic off the effects of carcinoma. bad words, carcinoma bronchogenic In other would his him and lose gradually appe- cause deteriorate tite, that the coal like that. And I think things that— aggravate workers’ would pneumoconiosis of the aggravate symp- that in the progression would *13 bronchogenic toms from the carcinoma.

>¡C Sic [*] [*] [*] [*] that, opinion, Mr. you your And testified Q. have coal pneumoconiosis? Kusenko did have workers’ Yes, A. he did. he had coal workers’ the fact that effect would

Q. What portions of those ability on the have pneumoconiosis cancer, to deal by invaded actually not lung, of the the cancer? the effects of with lungs that would not be Well, of the portions A. the be- hampered cancer would also be the by affected there- pneumoconiosis; of the coal workers’ cause of respiratory ability fore, breathing ability the hampered by pneumoconi- Mr. Kusenko would be osis.

[*] [*] [*] [*] [*] [*] as to opinion effect —Do have Q. Basically you what that, in his remain- your opinion, effect the fact what on the healthy not itself have ing lung tissue was events? of the course of the terminal rapidity that he had coal worker’s Yes, I think the fact A. hasten his eventual demise. would pneumoconiosis that, I don’t think he words, In other because the effects of have able to withstand would been pneu- His weakened system carcinoma. was moconiosis. resulted Doctor, in which diseases

Q. your opinion, Mr. Kusenko’s death? direct cause of death was opinion,

A. In my coal carcinoma, and I felt bronchogenic a causative factor pneumoconiosis workers’ his death. Record at 276a-279a.

Reproduced have Doctor, may that Mr. Kusenko Q. possible, Is it lung effects of this unable to ward off the bad been any pneumoconiosis? coal workers’ cancer absent Yes, A. possible. it’s died on may that he well have

Q. possible And is it had 6th, day, at the same time December the result of in the mines at all as a gone he never down lung his cancer? *14 Yes, I that’s say possible.

A. would

[*] [*] [*] [*] [*] [*] Q. Doctor, the crucial word this instance seems to be word; Doctor, may. your opinion, did or didn’t pneumoconiosis

coal workers’ hasten Mr. Kusenko’s death? n Oh, A. it yes, my opinion, did. record at 287A.

Reproduced as the Additionally, majority notes, pneumoconiosis coal worker’s was listed on Mr. Ku- senko’s death certificate as one of the “significant causes” of death. evidence,

Based on the foregoing competent record this must accept findings Court of the referee and the Board coal, that Mr. Kusenko had contracted pneumoconi- worker’s osis, compensable a occupational disease which resulted in his total death. disability eventual The evidence ade- quately supports finding that Mr. pneumoco- Kusenko’s “substantial, niosis was a contributing among factor causes in secondary bringing need, about death.” I see no therefore, to “reverse and remand to the Commonwealth Court for a decision majority’s consistent with” the stan- 301(c)(2) dard of causation under section decision of —the the Commonwealth Court is consistent with that standard. I would affirm the Commonwealth Court.

FLAHERTY, Justice, dissenting opinion.

I 301(c)(2) must dissent inasmuch as Section of the Work men’s Act clearly requires that death is only results compensable when it an occupational disease. from 411(2). Thus, I my view, P.S. adhere to original Bd., stated in McCloskey Comp. Ap. Workmen’s 93, 102-105, (1983) 460 A.2d 241-243 compensation a direct causal connection between must predicated upon the occupational disease and the death. The record in the instant case supports occupational conclusion that the disease, pneumoconiosis, factor, only contributing not a direct cause of death. The direct cause of death was carcinoma, and the testimony is that the pneumoconiosis weakened the decedent thereby hastened his merely death which resulted carcinoma. I would re- from verse.

HUTCHINSON, Justice, dissenting opinion. Although the majority correctly articulates the standard causation, for I am constrained to dissent its mandate *15 remanding the case. I do so I do because not believe the claimant produced sufficient evidence on this record to meet would, therefore, I standard. reverse. simply Jeffrey Lowry, re

In Andre LOWRY minors. DIAZ, Berceli, In re Linda also known as Johanna a minor. ZIEGER,

In re Ronald a minor. BERGER,

In re Kathleen a minor. MITCHELL, Tracey

In re a minor. BROOKS, re

In Leonard a minor. Snowley BROOKS,

In re a minor. BRISON,

In re Julie a minor. BROOKS,

In re Heather a minor. AYERS,

In re Sarah a minor. ANGELO,

In re Lisa Ann a minor. JONES,

In re Carmen Ann a minor. Joseph (Brown),

In re EVANGELISTA a minor. Appeal of CHILD ADVOCACY LEGAL AID SOCIETY.

Supreme Pennsylvania. Court of

Argued Sept. 1984.

Decided Nov.

Case Details

Case Name: Kusenko v. Republic Steel Corp.
Court Name: Supreme Court of Pennsylvania
Date Published: Nov 20, 1984
Citation: 484 A.2d 374
Docket Number: 27 W.D. Appeal Dkt. 1984
Court Abbreviation: Pa.
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