*1 93 is remanded is vacated and case of sentence Judgment have Brown’s should on whether a hearing suppressed. been opinion. J., concurring and files a
HUTCHINSON, joins J., in the result. McDERMOTT, concurs Justice, HUTCHINSON, concurring. I believe the because in this case majority
I join by reopening better served “interests of are justice” Amendment claim to consider Sixth hearing suppression the convic- attack on collateral suffering possible than by of ineffectiveness. charge tion by A.2d (Widow),
Margaret Harold G. McCLOSKEY (Deceased), Appellant, McCloskey
v. and APPEAL BOARD J.H. COMPENSATION WORKMEN’S Refractories, Inc. Commonwealth France
Pennsylvania, Appellees. Pennsylvania. Supreme Court 7, 1982. Dec. Argued May 1983. Decided witness; pathologist (5) not have been should Commonwealth testify permitted ny of homicide when testimo- as to a conclusion hearsay supplied police; part based on information was testify (6) because it was the wife the decedent to error allow pursuant sequestered to a as were witnesses she was not other order; (7) sequestration juror when it was should have been struck juror’s wife and/or wife sat next to decedent’s discovered that the trial; during improper (8) because the the sentence relatives place sentencing on the record as alternatives court failed to various code; (9) provided by unduly sentencing of the court was the sentence case, appeal In the there is another this harsh. event remaining may again issues raised. *3 for appellant. Murrysville, R. Klotzbaugh, George for appellees. Horne, College, H. State James *4 LARSEN, NIX, ROBERTS, O’BRIEN, C.J., and Before HUTCHINSON, JJ. McDERMOTT FLAHERTY, OPINION McDERMOTT,Justice. the Commonwealth decision of from a
This is an appeal Compensation Workmen’s of the an order affirming Court reversed “Board”) (hereinafter Board Appeаl 58 McCloskey.1 Margaret to appellant, award of benefits A.2d 288. 29, 427 Pa.Cmwlth. 9, July the Act pursuant in this Court is vested
1. Jurisdiction 724(a). 2, § 42 Pa.C.S.A. No. 142 § P.L. filed a Fatal Claim Appellant Petition on December husband, that death of her alleging Harold McClos- key (hereinafter “deceased”), on the previous 4, was January silicosis, the result of pneumoconiosis or lung contracted the deceased allegedly during employment J.H. France appellee, Refractories, Inc., a brick manu- firm facturing (hereinafter The “employer”). deceased worked as a brick setter green bricks and out of loading kilns where the occurred. baking process contested claim on the employer appellant’s basis of causation, the deceased of a arguing died myocardial infarction or heart attack. Appellant countered that deceased, the entire during period his еmployment, was exposed silica dust which caused him silicosis, develop of the scarring condition that lungs appellant contends con- tributed to the fatal heart attack. before the
Appellant presented
Workmen’s Com
pensation Referee the
of two
medical experts,
Drs.
testified,
Dreibelbis and Hall who
essentially,
silicosis
have been
may
among
causes of the decedent’s
death. The referee ruled in favor of
and the
appellant
Board affirmed his
on
findings
causation,
as to
but
appeal
remanded the case to the referee for recalculation of the
award. The referee then complied with the Board’s di
rectives.
In addition, he altered the
original findings
fact. On
the Board
appeal
cautioned the referee against
such
making
alterations2 and reversed its earlier
as
position
agree
2. We must
imрroperly
with the Board that
the referee acted
only
findings
taking
because it altered the
without
fact
new
evidence,
power
preeminent
but also because the
of the Board is
compensation proceedings. Accordingly,
workmen’s
under circum-
these,
stances
such
solely
where the Board’s remand was
award,
recalculation
the referee should have confined his
purpose
revisions to the stated
of the remand. To allow otherwise
practice
will condone
proce-
that would obfuscate administrative
Compensation
dures under the Workmen’s
Act. See
P.S.
854.
Industries,
See also Borovich v. Colt
492 Pa.
to causation.3 The Commonwealth Court affirmed this deci- sion. Board and Commonwealth Court relied upon
rationale of Consolidation Coal Co. v. Workmen’s Compensa- Board, 412, tion 37 Pa.Cmwlth. 14 Appeal (1978). 391 A.2d At the of this is question heart of whether controversy interpreted 301(c)(2)4 Consolidation Coal of properly § Act, Workmen’s which establishes the re- Compensation quirements must meet in order to receive death appellant this benefits under the circumstances of case. as follows: 301(c)(2) provides
Section
(2)
“injury
The terms
“injury,” “personal
injury,”
the course of his
as used in this
arising
employment,”
act,
include,
the context
other-
clearly
shall
unless
requires
108
this
wise,
disease as defined
section
of
occupational
Provided, That whenever
disease is
act:
ignore
and act in
its directives from the Board in remanded cases
appropriate.
whatever manner it deems
Appellant
itself on the issue
3.
observes that
Board reversed
upon
v. Workmen’s
Consolidation Coal Co.
causation in reliance
Board,
412,
(1978).
Compensation Appeal
37
Consolidation in cases interpreted 301(c)(2) allowing benefits only § where the death was caused an immediately by occupational disease so as to where the disease preclude recovery merely contributed with other factors death. causing Recogniz- ing the harshness of its the court Consolidation position, Coal observed as follows: we are aware of the of obtain-
Although fully difficulty medical evidence which ing pinpoints unequivocally death, cause of in cases in which the deceased particularly diseases, suffered we from number interrelated be- lieve that the Act medical evidence to requires present- ed which establishes that a claimant’s death resulted from disease, not that the disease was a occupational simply factor. Even if the result seems to be a one, harsh we not may judicially expand coverage Act by ignoring statutory language pertaining qualifi- cation for benefits.
It is obvious from statute that the did legislature causes, between results distinguish fail nor did are equate the two. not results since flow they may Causes factors, from numerous some more than others. directly 301(c)(2)provides compensable death Consequently, if it was caused “in whole or in part” by is, taken there аpproach disease. The Consolidation Coal *7 fore, not the statute. supported by courts have that where there are multi- recognized
Other
death,
of
in addition to
immediate non-com-
ple causes
one
these
cause, the determination as whether
of
pensable
is
an
of
rise to
based on
compensation
analysis
causes gives
Thus,
its
fatality.
recovery
pre-
contribution to
immediate
cause of death
a heart
cluded because the
disease,
non-occupational
provided
attack or some other
causes
among
secondary
an
disease existed
occupational
factor in bringing
of
and that it was a substantial
fatality
Steel, Inc. v. Workmen’s Com-
about death. See Crucible
Board,
415,
65
These
the rationale
contrary recognizes,
301(c)(2),
§
or in
“in whole
that death can
caused
Coal,
Consolidation
and still remain compensa-
diseases
occupational
part” by
a stan-
stringent
set too
Therefore,
Coal
ble.
Consolidation
in
articulated
Crucible
rule is
more reasonable
dard. The
line of cases.
its related
Steel and
301(c)(2)
under
required
testimony
§
medical
The
the existence
establishing
unequivocal
must be
be
connection
as the causal
as well
occupational
Pittsburgh
Wheeling
death. See
the disease
tween
Board, 61
Appeal
Compensation
v. Workmen’s
Corp.
Steel
v.
Electric Co.
General
(1981);
A.2d 853
Pa.Cmwlth.
Board,
Pa.Cmwlth.
Appeal
Compensation
Workmen’s
v.
Program
Manpower
Lehigh Valley
(1981);
Therefore, we hold today immediate cause was non-com of death and the causes ple be met 301(c)(2)may requirements pensable, § that, the de medical evidence showing unequivocal it was disease and that from an occupational ceased suffered caus substantial, secondary factor contributing among appellant Proving merely, about death. bringing es a contribu was or have been contends, may that the disease is inadequate. factor ting of death was case, the immediate cause
In the instant or sec contributing with numerous a heart attack coupled failed to factors. ondary disease existed unequivocally establish cause of death.5 was a substantial or that requirements failed to meet thus Appellant 301(c)(2). *8 which the upon we Consolidation Coal Although reject we the less standard relied, stringent lower court еven under need, no must fail. There is now claim adopt, appellant’s this matter. therefore, to remand Court is the order of the Commonwealth Accordingly, affirmed.
FLAHERTY, J., a concurring opinion. files ROBERTS, C.J., in the result. concurs Dreibelbis, expert Appellant’s Dr. testified that identification 5. merely contributing a in the deceased’s death was silicosis as a factor X-ray. Deposition, “supposition” of an made without the assistance Dreibelbis, Appellant’s was at other W.H. M.D. 4/30/75 11. reducing only may have been a factor certain that silicosis Deposition, surviving the fatal heart attack. deceased’s chances Thus, Hall, M.D., question serious at 11. there is a R.L. 1/19/77 requiring only appellant to whether met her own liberal standard showing factor. Neither of her that the disease was a experts unequivocally established that silicosis contributed deceased’s heart attack. LARSEN, J., files dissenting opinion. C.J.,
O’BRIEN, HUTCHINSON, J., former and did in the decision of participate this case.
FLAHERTY, Justice, concurring.
I concur in the result reached on this by majority record. The of Dr. Hall follows: pertinent is as
Q. Could tell us how he you long was a patient yours?
A. I’d nine say approximately years.
Q. And, us, doctor, tell the nature of please, basically Mr. treatments or nature of problems McCloskey having. infections,
A. His recurrent involved chest problems chronic to emphyse- obstructive related pulmonary ma and silicosis. letter, . . . doctor, to Cimino
Q. Now in your Attorney also said him ‘it is the obstructive you my opinion was a contribu- major silicosis emphysema pulmonary tion his death.’
A. Right.
Q. basically myocardi- he died Although Alright. what mean please explain al infarction. Could you you to his was a contribution major what nature of silicosis death. have McCloskey pneu-
A. We certain that Mr. did were disease. pulmonary and the chronic obstructive moconiosis *9 I for five or six Also, years. he hád at least angina had infarction myocardial the acute it was suspect possibly that if does death, but we know a patient that his caused infarction, myocardial or an acute have heart attack of chronic obstructive any that if have evidence he does pulmonary emphysema, disease pulmonary concentration oxygen indicate that blood gases usually de- to varying is decreased usually blood stream But, grees. we also know that if a patient does have acute infarction —a with myocardial patient chronic ob- structive disease makes the to survive pulmonary ability much more difficult because of a lack of oxygen, to the heart muscle due thrombosis be the amount coronary artery the heart mus- damage cle is related to how much directly oxygen gets into that tissue, and if a does have the chronic patient obstructive disease on pulmonary suрerimposed dis- coronary artery ease, it do evi- they’ll very badly having any will— dence of an infarction, acute so I myocardial felt that his lung was an important contributing factor to his death when he died in 1974. We know that with any attack, with a patient heart if their are lungs normal their chances of are much surviving better than if have they any degree chronic obstructive disease. pulmonary Q. Silicosisor the general classification of pneumoconi- osis, silicosis would be considered a chronic obstructive disease. pulmonary
A. Right.
IQ. understand to be that the your testimony possibili- of his ty survival is decreased he because has this silicosis condition.
A. Right. of his possibility surviving heart attack when he had it there was decreased because of that silicosis, in that the prime thing the amount of oxygen supplied the heart muscle that gingered, if they have the chronic obstructive disease, the pulmonary oxy- gen concentration into that getting heart muscle is de- creased much more than just the attack. So, heart really aggravates the infarction and heart attack marked- ly-
Q. tell, There’s no way can you though, whether he would have survived independent silicosis condi- tion? No,
A. there’s no way. Q. So, he could have expired had he not had silicosis. *10 Yes,
A. he could have. Q. then, there’s no can tell with a way you And certainty reasonable of medical the silicosis degree was the cause of death.
A. No, but it was factor to markedly contributing the death because of the that had to damage been done . .. lungs. It was a factor in the sense that
Q. decreased his of survival of the possibility myocardial infarction? that, And with an anoxia like
A. Right. probably extent of the of the heart muscle would be larger. The medical is that silicosis was not the cause of testimony death; rather the describes silicosis as a condition to to recover from a ability which can operate impair The record is devoid of any unequiv- infarction. myocardial be- a causal connection testimony establishing ocal medical disease, silicosis, and McCloskey’s occupational tween the death. which is: governs language
The legislative disease is the basis for compensa- [Wjhenever occupational act, this it shall apply or death under tion, for disability from such disease.... resulting or death disability only shall (2) apply only this paragraph provisions of an employe or death disability respect the employe’s exposure from part results in whole or. . . . disease. the hazard of amended, III, 301(c), as 1915, P.L. art. June Act of of “result” The meaning 411(2) (Supp.1982-1983). 77 P.S. § proceed, common To result is “to usage: clear in its is quite conclusion,” effect, or consequence, as a or arise spring (1976). Dictionary New International Third Webster’s conclusion; it is end or that connotes is consequence “Result result Derivatively therefore, that achieves. consequence, of the idea back; something it contains means leap Opdycke, John Baker calculating.” or checking proving Expression Usage Modern Words, a Guide Mark My cause, from previous effect implies “Result” 210 (1949).
105 follows, an event which and “contribu- Id. at not simply A reading are not with causes. synonymous factors” tory words chosen statute, meaning by the the giving plain me to the conclu- leads inescapably the General Assembly, affirmed the Court correctly sion that the Commonwealth on causa- that the referee’s decision Board’s determination evidence of record. tion was not the medical supported by medical sufficiency expert “The test for the proper legal must expert on the of causation is that the issue testimony in question the result opinion testify professional Steel, Inc. v. W.C. came from the cause Crucible alleged.” 415, 420, 442 A.2d 1202 A.B., 65 Pa.Commonwealth Ct. Crucible, medical that silicosis (1982). testimony In supra, of death met the statutori- was “the most cause” significant contrast, In medical testimo- burden of prescribed proof. ly contribu- disease was a “substantial that an ny occupational factor,” “contrib- factor”, 241, “major at contributing ting manner,” or “contributed significant uted in a substantial is not suffi- to and accelerated” the death employe’s simply in whole or in from part cient to the death prove “resulted] dis- occupational hazard employe’s exposure 418, 442 65 at A.2d Steel, ease.” Crucible Pa.Cmwlth. supra, where, here, Thus, therein. at and cases cited disease was “a occupatiоnal testifies that death,” factor to the such contributing markedly the Act. prescribed falls short of the standard by LARSEN, Justice, dissenting. of the Common- rejection
I
with the
agree
majority’s
wealth
standard for
when death “re-
determining
Court’s
301(c)(2)
sults from” an
disease under section
occupational
Act),
Act
Compensation
(the
the Workmen’s
P.S.
first articulated in
411(2), which standard was
Consolida-
tion
v. Workmen’s
Board
Compensation Appeal
Coal Co.
(1978). However,
death “resulted *12 is that the of the Act where the medical meaning factor in that it de- contributing markedly disease was infarc- chances of surviving myocardial creased decedent’s evidence”, 77 that “sufficient competent tion. I would hold the referee’s 834,1 exists on the record to support P.S. § (and suffered from silicosis pneumo- that decedent findings that silicosis was a “significant, and his coniosis), finding death, and McCloskey’s factor” in Mr. causative connec- causal requisite demonstrate findings that such i.e., disease, and the occupational the death tion between within the disease the occupational death “resulted from” 301(c)(2). of seсtion meaning claimants or is available for Act, compensation
Under for or employee to injury for personal their dependents 77 P.S. of employment. in the course an injury death by rele- in 411(1) provides, 77 P.S. 301(c)(1), § 431. Section § vant portion: as used injury,” and “personal terms “injury”
The to an an injury to mean construed act, this shall be condition, physical of his previous regardless employe, there- and related of his employment in the course arising from results as naturally infection or to, and such disease accelerated reactivated or or is aggravated, the injury cause as a is mentioned death wherever and injury; mean death only it shall act, under this for compensation effects, and resultant and its such from resulting findings fact shall portion, “all provides, in relevant 1. Section justify to same.” competent upon evidence be sufficient based weeks the injury, within three hundred after occurring added). (emphasis added, 411(2), 301(c)(2)
In
P.S.
section
diseases within
which
embraced
provision
occupational
portion:
That section
relevant
“injury” concept.
provides,
aris-
“personal injury,”
“injury
“injury,”
terms
act,
used in this
course of his
ing
employment,”
in the
otherwise,
include,
the context clearly requires
shall
unless
of this act2
as defined in section 108
disease
is the basis
Provided, That whenever occupational
act,
this
or death under
for
compensation,
disability
from such
resulting
shall
or death
only
disability
to
apply
weeks after
within three hundred
disease and occurring
occupation
industry
in an
employment
last date
of such disease: And
he was
hazards
exposed
which
further,
if
dis-
That
the employe’s compensable
provided
within
occurred
such
ability
period,
subsequent
has
death
result
the disease shall likewise
compensa-
as a
this
shall
paragraph (2)
apply only
ble. The
provisions
or death of an
disability
employe
respect
exposure
whole or in
from the
part
employe’s
results in
*13
30, 1973 in
disease after June
the hazard of occupational
the
Workmen’s
by
Pennsylvania
covered
employment
added).
(emphasis
Act.
Compensation
an occupa-
In
death resulted from
determining whether
77
301(c)(2),
tional
within the
of section
P.S.
meaning
disease
interpretation.
our
411(2),
guide
several salient principles
§
nature and
consideration is the remedial
overriding
Act
liberal
objectives
require
humanitarian
v.
of its
and
Krawchuk
scope
construction
application.
Co.,
115,
497
627
120,
Electric
Pa.
439 A.2d
Philadelphia
1972, 1
Act of
Pa.C.S.A.
(1981); Statutory Construction
1982-83). This Court has held that
1928(c) (pamphlet
§
the disabili-
need not be the sole or exclusive cause of
injury
27.1(k),
compensation
108(k), 77
under which
2. Section
P.S. §
disease,’
referee,
by
provides:
‘ocсupational
“The term
awarded
act,
following
only
mean
diseases....
as used in this
shall
of,
with, handling
any
involving
occupation
Silicosis in
direct contact
exposure
or
to the dust of silicon dioxide.”
108
Hotel,
313, 319,
Hilton
487 Pa.
ty,
nor, as the
does an
or
(1979),
majority acknowledges,
to be the sole or exclusive cause of
need
70,
WCAB,
Elliott v.
57 Pa.Commw.
425 A.2d
E.g.,
death.
Moreover, it
the Act if
885, 887
is sufficient under
(1981).
disease)
an occupational
“aggravates,
injury (including
condition which
reactivates or accelerates”
preexisting
cause of
condition was the immediate
primary
preexisting
v. Bernard
411(1),
77
WCAB
or death. See
P.S.
disability
Halaski v.
Co.,
(1978)
Pa.
Defendants the increased have it though may even infarction myocardial of 323(a) on section Relying the decedent. harm to risk of Performance Torts, Negligent of (Second) the Restatement rejected this Services,3 Render Court Undertaking to of Pa. causation, and at 484 of theory defendants’ narrow 273, held: majority Court Superior
We
with the view of
agree
to
323(a)
of
is
in Bashline I that
effect
expressed
required
plain-
of
normally
relax the
of certitude
degree
for
as to
jury
order to make a case
tiff’s evidence in
held
for
plaintiff’s
liable
whether a defendant may
that a
has introduced evidence
injuries:
plaintiff
Once
or
increased the risk
act
omission
negligent
defendant’s
and that the harm
in plaintiff’s position,
harm to a person
sustained, it
for the
jury
was
fact
becomes a question
increased risk
a substantial
to whether or not that
the harm.
factor in producing
it fol-
323(a),
In
of our
of Section
light
interpretation
is a factor in
case
medical causation
lows that where
is
that the
Section,
not necessary
within
coming
to that
medical evidence—in addition
plaintiff introduce
increased
defendant’s conduct
prove
adduced to
already
asserted
that the negligence
risk of harm —to establish
Rather, once the
is
in plaintiff’s injury.
jury
resulted
result-
that defendant’s conduct
apprised
the likelihood
harm,
jury,
leaves to the
ed in
that Section
plaintiff’s
task of balancing probabilities.
the medical
expert,
the well-es-
In
do not intend to undermine
so
we
saying
medical cer-
of “reasonable
degree
tablished standard
on
norm for medical
accepted
opinions
as the
tainty”
it would be unreasonable and
causation. But we think
to
of case to
expect
physician
unrealistic
this type
degree
certainty”
with a “reasonable
of medical
state
(Section
law
323(a))
when the
happened
what
have
might
323(a) provides:
3. Section
consideration,
undertakes, gratuitously
to render
who
or for
One
necessary
recognize as
should
services to another
he
subject
liability
protection
things,
person or
is
of the other’s
resulting
physical
his failure to exercise
the other for
harm
from
undertaking,
(a)
perform
if
his failure to
reasonable care
harm,
(b) the harm
such
the risk of such
exercise
care increases
upon
undertaking.
reliance
suffered because
the other’s
*15
recognizes
involved.
D.
contingencies
See generally
Danner and E. Segall, Mediocolegal Causation: A Source
of Professional
3 Am.J.L. & Med. 303
Misunderstanding,
Where
(1978).
there is at issue the
of medical
adequacy
services rendered in a fact
situation to
Section
therefore,
323(a)
a
facie case of
applies,
prima
is
liability
established where
presented
did,
to the effect that
defendant’s conduct
a reasona-
ble
of medical
increase the risk that the
degree
certainty
harm sustained
would occur.
by plaintiff
held, in
v. Montefiore
This Court further
Jones
Hospital,
at 494 Pa.
It is inconceivable compensation causation in workmen’s stricter standard of decided under Sec- cases malpractice cases than in medical recognizes That section of the Restatement. 323(a) tion to render undertaking one part on duty higher ordinary negli- of the a relaxation which justifies services and statutory Surely of causation. standards gence to provide employee’s to his of an employer moral obligation more no environment justifies working safe conditions Compensation under the Workmen’s a stаndard stringent
Ill we construction which Act, liberal especially light *16 the Act. must give 77 language 301(c)(2), from” of P.S. “resulting Section not a referee’s 411(2), preclude finding does surely
§ death injury causal connection between or and disability testi- an where the medical disease) (including contributed to materially establishes that mony 487 Pa. 409 death, Hotel, Halaski v. Hilton at supra v. Pa. 415 WCAB, 367 and Comm. A.2d Crucible Steel in increasing was a factor (1980), A.2d 458 or substantial or risk of accelerating”) reactivating, (“aggravating, have more harm to the which harm been may employee or some condition non-com- “caused” other immediately by and 301(c)(1) or ailment. occurrence See Section pensable Bashline, Hamil v. supra. treatise, Workmen’s Compensation
In Professor Larson’s
13.11,
observations:
Law,
following
the author makes the
§
cases
The second
of medical-causation
comprises
grouр
cases in which the existence of the primary compensable
indepen-
in some
exacerbates the effects
injury
way
causal
dent
weakness or disease. The
sequence
but as
complex,
long
these cases
be more indirect
may
as the
is in
present
compensa-
causal connection
fact
is beyond
condition
bility
subsequent
question.4
that
condition
compensable injury produces
“[W]hen
have
interferes
normal curative processes
might
See,
Welfare,
e.g.,
Department
210 Kan.
4.
Drake v. State
of Social
(1972) (decedent’s compensable
injury pre-
back
alleviated the preexisting independent condition, the pro- gression condition independent is compensable.... It is also of note that worthy federal (20 regulations CFR 718.205) pertaining benefits to miners whose death was due to pneumoconiosis5 provide:
(b) Death will be due considered to pneumoconiosis if any following criteria met: (1) Where competent medical evidence established that the miner’s death was due pneumoconiosis, or death (2) Where was due to causes multiple including pneumoconiosis and it is not feasible to medically distin- guish diseasе caused death or the extent to which *17 pneumoconiosis contributed to the of cause death. . . . (c) the this section, For of shall be purpose death con- to be sidered due to the pneumoconiosis where cause of death is to or related significantly aggravated by pneumo- coniosis.
A related consideration this case is the issue of the of the medical causation. sufficiency testimony regarding has Commonwealth Court rule pronounced general that, where no obvious exists relationship between injury cause, its and work said to be medical activity “unequivocal” is establish the causal connection. testimony necessary See, Commission, Breen v. 52 Pa. Crime e.g., Pennsylvania 41, (1980). 415 A.2d This has accepted Commw. 148 Court Hotel, the of this rule. v. Hilton validity” Halaski “general 317, However, 487 367. an examina at Pa. 409 A.2d supra tion cases that does not mean “unequivocal” of the discloses must to an absolute testify certainty that the medical expert all other causes. As we as to or eliminate possible causation lungs generic the caused term for disease of 5. Pneumoconiosis is the particles. by irritant mineral or metallic habitual inhalation of the Silicosis, Dictionary (1977). particular Collegiate New Webster’s fibrosis type pneumoconiosis, condition of massive of by prolonged lungs the breath and caused shortness of marked of silica dusts. Id. inhalation
113
2,
at 487 Pa.
n.
Hotel, supra
in Halaski v. Hilton
stated
2:n.
The proper the condition of not that has expert testify, is: ... the did, from the even come have, or probably claimant might result in the opinion that in his professional but [injury], A less direct alleged. the cause came from question standard of required falls below opinion expression evidence. competent not constitutе legally and does proof Co., 497, 376 Pa. Menarde v. Philadelphia Transportation (1954). 103 A.2d standard made evidentiary elaboration of Further at Pa. 421 A.2d v. Inouye, supra Gradel stated: wherein we need be unquali- on not causation medical
Expert opinion terms”; ordi- absolute, i.e., “categorical fied stated in “reasona- was, to a it must establish narily, caused by alleged ble of medical certainty,” degree negligence. ques- human body place the complexities
[When] or injury beyond cause pain tions as . the law re- . . average layperson knowledge In testimony employed. quires the defend- on whether bearing to its addition is needed to conduct was such negligent, ant’s *18 did, with a reasona- in establish that the question from the negligent stem certainty, ble of medical degree act alleged. (citations at 1285 267, 392 A.2d
Bashline, 481 Pa. at omitted, emphasis supplied). the infi- and languagе vagaries English
Given the use, may which a medical expert nite of words combination in cases review- find wide the variety it is to surprising competent for sufficient on causation ing referees’ findings commentator noted: As one evidence. that assert the must unequivocally
the medical witness the cause. assigned did result from attack actually heart A less direct expression falls the opinion below requisite standard of and thus does proof not constitute legally competent evidence sufficient to support findings of fact. Statements of medical opinion phrased terms of “could cause”; have” or “could be or “probably was” “proba- a cause bly and effect relationship”; “highly possible” or “very probable and highly possible”; related”; “might or “I assume” “Ior have been presume” too equivocal held to establish causation. On other hand, opinions ren- dered “with a reasonable of medical degree certainty,” phrased, example, as “I it think accelerated certainly death,” his “it is that my opinion was [the accident] or “it is aggravating,” my opinion precipitated [the work] that which his death, caused namely, occlu- coronary sion” were all held sufficiently unequivocal establish The witness causation. need not establish causation to a medical nor need he rule out all other certainty, possible There in all be an causes. must cases factual adequate basis the record witness upon predicates opinion.
Heart Attacks and the Workmen’s Pennsylvania Compensa tion Act: between Establishing Relationship Causal III, Employment (1976) Dick.L.Rev. 130-31 Injury, (footnote omitted). references apparent
From the
seems
there are
foregoing,
In
different
of causa-
degrees
“equivocаtion”.
realm
evidence”,
tion,
“sufficient
means
competent
P.S. §
that the
must
no more—
expert medical
establish
testimony
that, to a
and no less—than
reasonable
medical
degree
certainty,
disability
the death
connected
causally
No
disease).
“magic
the injury (including
words
convey
are
so
as the
chosen
required
long
words”
de-
as to causation to
reasonable
professional opinion
WCAB,
v.
54 Pa.
Wilkes-Barre
certainty.
gree
course,
And of
(1980).
The the instant referee haz- to a silica dust exposed had been continually decedent at Frаnce his of J.H. employment ard during years found Dr. William H. Refractories, He further that Inc. was concluded, in deposition, pneumoconiosis that Dreibelbis Hall, in and that Robert L. cause of death Dr. contributing major that silicosis was a contribu- concluded deposition, cause.6 ting case,
In characterization majority’s the instant may that silicosis as being “essentially, medical testimony 239, death,” is, causes of decedent’s at have among been me, unfair. To this characteriza- it seems to rather support tion, excerpts depositions isolates from the majority 241, In this viewing Drs. Hall. At n. 5. Dreibelbis and I agree in its am to entirety, compelled deposition testimony set at 3-4 Board, as forth following synopsis by 8, June 1978: of the Board’s dated opinion is not the Referee did essential issue whether or [T]he which to base his evidence competent upon have sufficient he did. the testimo- Certainly We thаt believe findings. was not in and of itself sufficient of Dr. Dreibelbis ny the causal opinion expression constitute direct 6. misleading majority to It for the state that testimony unequivocally that failed to establish existed, slip opinion light at of the uncontradicted disease years testimony that had treated for of the doctors decedent been regarding pneumoconiosis/silicosis and the nonmedical workplace exposure As scilica dust. was decedent’s constant opinion Compensation Appeal Board in its noted the Workmen’s specific appeal been to the issue of June 1978 “this has limited pneumoconiosis cause to the or not whether question apparently death of the decedent. Defendant does exposed findings hazard and that had been to a silica decedent only suffering pneumoconiosis. how from It is he was Slip death is at issue.” rеlates decedent’s opinion June at 2. *20 connection between injury and the decedent’s death. We believe that when his is testimony read as background of Dr. testimony Hall, however, that isit clear there is sufficient competent evidence upon the record to sup- port the findings the Referee. Among other Dr. things, Hall specifically testified that: “I felt that his dis- lung ease was an important factor to contributing his death when he died in further, 1974.” And on cross-examina- tion, Dr. Hall stated:
A. “The of his possibility heart surviving attack when he there, it
had was decreased because of silicosis, that that the thing is the amount of prime oxygen supplied heart muscle that gingered, and if they have the chronic disease, obstructive pulmonary con- oxygen centration into getting that heart muscle decreased much more than the heart just So, attack. it really the infarction and aggravates heart attack markedly.” Q. no that tell, “There’s can way you whether he though,
would have survived independent silicosis condi- tion?” “No,
A. no there’s way.” “So, Q. he could have had he not had silico- expired sis.”
A. “Yes, he could have.”
Q. then, tell, “And no that way you there’s can
reasonable of medical that the silicosis degree certainty, was cause of death.” “No, it A. but was a factor to the markedly contributing death because of the that had been done to damage to ...” lungs prior “It factor in the sense that
Q. myocardial decreased his of survival possibility infarction?” that, the
A. And with an anoxia like “Right. Probably to the heart muscle would extent of larger.” the doctor reveals testimony of this
A review could not be a definite determination recognized it is of an but autopsy, because of lack made, especially or contradict his not compromise that he did our opinion the cause of death. as to expressed opinion previously establish- I hold that the would that Mr. medical certainty, es, degree a reasonable resulted from death McCloskey’s from the the risk of harm silicosis increased in that (silicosis) accelerating infarction, thus aggravating myocardial *21 competent condition. Sufficient preexisting independent, finding the referee’s exists, therefore, to support evidence causative fac- silicosis was a “significant, and to sustain award of Mr. McCloskey tor in the death” of benefits. quot- medical I believe that
Finally, causation, standard of also meets the majority’s ed above evidence” establishes that “unequivocal namely, “substantial, contributing and was a that silicosis existed about death. factor” bringing Court I reverse the Commonwealth would
Accordingly, computation the Board for remand the case to of compensation schedule appropriate benefits under the inordinate time of death.7 Given existence at to reach final case has taken of time that this amount remarkable and is to resolution (appellant’s perserverance Board render its direct that the commended), I would be all due haste. computation inappropriate would be of the referee’s award
7. Reinstatement First, purported original award of June two reasons. compensation in the computed pursuant to the schedules However, compensa- the amount Compensation Act. Workmen’s week) specified in ($54.00 per amount seems to be the tion Second, Act, 1407(4). the subse- Occupational 77 P.S. Disease remand, following quent rendered on December award per compensation week inexplicably $100.00 alters the amount of per The record does $95.34 1975 and week thereafter. until June weekly benefits. The better basis for the alteration of not disclose a course, therefore, computation simply to the Board for is to remand of benefits.