600 A.2d 1305 | Pa. Commw. Ct. | 1991
Lead Opinion
Ray Oaks Machine Shop (Employer) appeals from an order of the Workmen’s Compensation Appeal Board (Board) which affirmed the referee’s award of fatal claim benefits to Mary E. Bubenko (Claimant), the widow of Alex J. Bubenko (Decedent).
Decedent worked as a coal miner for seven and a half years beginning in 1936, where he was exposed to coal dust. Later, Decedent worked as a grinder in several machine shops for twenty-four years, where he was exposed to silica dust. Decedent’s last employer was Ray Oaks, where he worked for one and a half years. Decedent’s last day of work was July 3, 1980.
During his lifetime, Decedent had filed a claim petition under Section 108 of the Pennsylvania Workmen’s Compensation Act (the Act),
On December 22, 1986 Decedent died of an acute myocardial infarction. On March 7, 1988 Claimant filed a fatal claim petition alleging that her husband’s death was second
After the matter was heard, the referee, in a decision dated January 12,1990, made the following relevant finding of fact:
15. After careful review, I find the testimony and opinions of Dr. Sidney A. Goldblatt more persuasive than those expressed by Dr. Harvey Mendelow. I, therefore, find that mixed dust pneumoconiosis; i.e., coal workers’ pneumoconiosis and silicosis, was a co-equal cause of death with the myocardial infarction/coronary artery disease; and therefore, a significant contributing factor. (Emphasis added).
The referee found that Claimant sustained her burden of proving that her husband’s hazardous exposure during the course of his employment with Employer was a significant contributing factor in bringing about Decedent’s death and, accordingly, awarded fatal claim benefits. On Employer’s appeal, the Board, by decision dated February 26, 1991, found that the referee’s decision was supported by substantial evidence and affirmed the fatal claim award. Employer’s appeal to this Court followed.
Employer contends that it is not liable to compensate Claimant because the referee’s finding that “mixed dust pneumoconiosis” was a substantial contributing factor in bringing about Decedent’s death is not supported by the record. Where there are multiple causes of death and the immediate cause was non-compensable, the requirements of Section 301(c)(2) of the Act, 77 P.S. § 411(2), may be met by a showing with unequivocal medical evidence that the deceased suffered from an occupational disease and that it
In reaching her conclusion, the referee considered the testimony of both parties’ medical experts. Dr. Goldblatt, Claimant’s medical expert, testified that he had reviewed microscopic slides, the protocol of the autopsy performed by Dr. Monteleone, the certificate of death, and various medical reports and records. Based on his review, Dr. Goldblatt was of the professional opinion that Decedent died of co-equal causes of death, namely, a myocardial infarction related to a cardiac condition and severe coal workers’ pneumoconiosis of the macular and micronodular type. Dr. Goldblatt also noted that an abundance of birefringent silica crystals were present on autopsy, and testified that silicosis was “strategically important” (R.R. 124a) in bringing about Decedent’s death.
Dr. Mendelow, Employer’s medical expert, testified that based on his review of various hospital reports, testimony and the autopsy report, he was of the professional opinion that Decedent’s death was a direct result of a sudden cardiac arrest due to advanced coronary artery disease. He did not believe that the coronary artery disease was related to Decedent’s employment. On cross-examination, Dr. Mendelow opined that Decedent’s exposure to mixed dust was not a substantial factor as evidenced by the pathologic findings, but was instead a modest contributing factor. Dr. Mendelow further testified that he found no silicosis and stated that the hypoxia was a direct result of Decedent’s coronary disease.
Of the two conflicting medical opinions, the referee found Dr. Goldblatt’s opinions to be more persuasive than those expressed by Dr. Mendelow.
Our review of the record, however, discloses that neither Dr. Goldblatt nor Dr. Mendelow diagnosed “mixed dust pneumoconiosis” in Decedent. Instead, Dr. Goldblatt diagnosed coal workers’ pneumoconiosis from coal mine employment and silicosis from machine shop employment and Dr. Mendelow, while referring to the presence of silica and carbide contained in grinding wheels as “mixed dust,” did not believe that the “mixed dust” contributed to death and further testified that Decedent did not have coal workers’ pneumoconiosis or silicosis.
In the absence of a diagnosis of “mixed dust pneumoconiosis”, the presence of two enumerated occupational diseases
The medical findings accepted by the referee show that the cause of Claimant’s occupational disease disability is at least limited to two enumerated diseases — coal workers’ pneumoconiosis and silicosis. Because Claimant’s exposure while employed by Employer was solely to silica, the question becomes whether there is medical testimony supporting an award for silicosis.
ORDER
AND NOW, this 22nd day of October, 1991, it is hereby ordered that the above-captioned matter be remanded to the referee for a determination as to whether silicosis and not “mixed dust pneumoconiosis” was a substantial contributing factor in bringing about the death of Alex J. Bubenko. Jurisdiction relinquished.
. Act of June 2, 1915, P.L. 736, § 108, as amended, 77 P.S. § 27.1.
. Our scope of review is limited to a determination of whether a violation of constitutional rights occurred, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Borough of Media v. Workmen’s Compensation Appeal Board (Dorsey), 134 Pa.Commonwealth Ct. 573, 577, 580 A.2d 431, 432 (1990).
. The referee may accept or reject the testimony of any lay or medical witness, in whole or in part. Town & Country Fine Furniture v.
. Coal workers' pneumoconiosis is enumerated in Section 108(q) of the Act, 77 P.S. § 27.1(q), and silicosis is enumerated in Section 108(k) of the Act, 77 P.S. § 27.1(k).
. This Court has rejected a similar illogical conclusion in USX Corp. v. Workmen's Compensation Appeal Board (Koteles), 133 Pa.Common
. Section 302(c)(2) of the Act, 77 P.S. § 411(2), states that as to occupational disease disabilities under Section 108(k) for silicosis, the employer liable for compensation is the one “in whose employment the employe was last exposed for a period of not less than one year to the hazard of the occupational disease claimed." (Emphasis added).
Dissenting Opinion
dissenting.
Although Dr. Goldblatt testified that silicosis was “strategically important” (N.T. 18) in bringing about the Dece
ON DIRECT EXAMINATION:
Q: What did your microscopic examination reveal?
A: Microscopic examination showed that Alex Bubenko had pneumoconiosis, that the lesions which were macular and in some areas micronodular, were for the most part characteristic of coal worker’s pneumoconiosis, and while it is difficult to distinguish between silicosis and coal worker’s pneumoconiosis in all situations, the lesions had a far greater resemblance to the expected pattern of coal worker’s pneumoconiosis than to the patterns of silicosis.
I examined the tissue also with the polarizing microscope and demonstrated an abundance of birefringent crystals consistent with silica within the lesions, accompanied by a great deal of black pigment, the anthracotic pigment, which is seen so abundantly in coal dust.
(N.T. p. 6)
ON CROSS-EXAMINATION:
Q: You mentioned that he does have evidence of coal worker’s pneumoconiosis, which you designated I believe as simple pneumoconiosis?
A: Yes.
Q: And this is related at least from your clinicopathological summary, to his coal mine employment, is that correct?
A: Yes.
Q: And would those be the eight years that he was a coal miner prior to 1945?
A: That’s correct.
Q: And is coal worker’s pneumoconiosis as you have designated it, the lung problem that you called a coequal cause of his death, is that correct?
A: That’s correct.
Q: You did not identify silicosis as a co-equal cause?
*188 A: I believe that it is present, but I believe it is a much more minor process.
Q: Would his silicosis, in your opinion, Doctor, be the result of his 24 years as a grinder?
A: Yes, I believe it is.
Q: And in your opinion, Doctor, would the coal worker’s pneumoconiosis be the cause of the hypoxemia and the additional load that would be on his heart that you described?
A: Yes. Primarily it is due to coal worker’s pneumoconiosis. I believe there is a contribution as well from silicosis, but I think that overwhelmingly the pathology here is due to coal working.
Q: Would that silicosis be minor in the over-all contribution to his lung impairment?
A: I believe that it is still strategically important, but considerably more minor than his coal worker’s pneumoconiosis.
Q: And the focal dust emphysema, Doctor, is that also related to the coal worker’s pneumoconiosis as compared to the silicosis?
A: Well, it is related to both, but because coal worker’s pneumoconiosis is the process which dominates here, I believe that most of the attribution of cause for the focal dust emphysema should be made to coal worker’s pneumoconiosis.
Q: And you again identify the coal worker’s pneumoconiosis as the most dominant of the lung problems, is that correct?
A: That’s correct.
(N.T. pp. 17-18 emphasis added.)
Based on the above testimony from Claimant’s medical expert, I would have to conclude that there was no medical evidence to substantiate a finding that the disease of silicosis was a substantial contributing factor in bringing about Decedent’s death and a remand in this case would be