McCloskey v. Workmen's Compensation Appeal Board

This is an appeal from a decision of the Commonwealth Court affirming an order of the Workmen’s Compensation Appeal Board (hereinafter “Board”) which reversed an award of benefits to appellant, Margaret McCloskey. 58 Pa.Cmwlth. 29, 427 A.2d 288.

Appellant filed a Fatal Claim Petition on December 4, 1974 alleging that the death of her husband, Harold McCloskey (hereinafter “deceased”), on the previous January 4, was the result of pneumoconiosis or silicosis, a lung disease allegedly contracted by the deceased during his employment with appellee, J.H. France Refractories, Inc., a brick manufacturing firm (hereinafter “employer”). The deceased worked as a green brick setter loading bricks in and out of kilns where the baking process occurred.

The employer contested appellant’s claim on the basis of causation, arguing that the deceased died of a myocardial infarction or heart attack. Appellant countered that the deceased, during the entire period of his employment, was exposed to silica dust which caused him to develop silicosis, a scarring of the lungs condition that appellant contends contributed to the fatal heart attack.

Appellant presented before the Workmen’s Compensation Referee the testimony of two medical experts, Drs. Dreibelbis and Hall who testified, essentially, that silicosis may have been among the causes of the decedent’s death. The referee ruled in favor of appellant and the Board affirmed his findings on appeal as to causation, but remanded the case to the referee for recalculation of the award. The referee then complied with the Board’s directives. In addition, he altered the original findings of fact. On appeal the Board cautioned the referee against making such alterations and reversed its earlier position as to causation. The Commonwealth Court affirmed this decision.

The Board and the Commonwealth Court relied upon the rationale of Consolidation Coal Co. v. Workmen’s Compensation Appeal Board, 37 Pa.Cmwlth. 412, 391 A.2d 14 (1978). At the heart of this controversy is the question of whether Consolidation Coal properly interpreted § 301(c)(2) of the Workmen’s Compensation Act, which establishes the requirements appellant must meet in order to receive death benefits under the circumstances of this case.

Section 301(c)(2) provides as follows:

(2) The terms “injury,” “personal injury,” and “injury arising in the course of his employment,” as used in this act, shall include, unless the context clearly requires otherwise, occupational disease as defined in section 108 of this act: Provided, That whenever occupational disease is the basis for compensation, for disability or death under this act, it shall apply only to disability or 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 was exposed to hazards of such disease: And provided further, That if the employe’s compensable disability has occurred within such period, his subsequent death as a result of the disease shall likewise be compensable. The provisions of this paragraph (2) shall apply only with respect to the disability or death of an employe which results in whole or in part from the employe’s exposure to the hazards of occupational disease. . .

77 P.S. § 411(2) (emphasis supplied).

Consolidation Coal, stressing the words “resulting from”, interpreted § 301(c)(2) as allowing benefits only in cases where the death was immediately caused by an occupational disease so as to preclude recovery where the disease merely contributed with other factors in causing death. Recognizing the harshness of its position, the court in Consolidation Coal observed as follows:

Although we are fully aware of the difficulty of obtaining medical evidence which unequivocally pinpoints the cause of death, particularly in cases in which the deceased suffered from a number of interrelated diseases, we believe that the Act requires medical evidence to be presented which establishes that a claimant’s death resulted from an occupational disease, not simply that the disease was a contributing factor. Even if the result seems to be a harsh one, we may not judicially expand coverage of the Act by ignoring statutory language pertaining to qualification for benefits.

37 Pa.Cmwlth. at 422, 391 A.2d at 19.

This rationale as a standard for determining when the occupational disease results in death is an incomplete analysis of the statute.

It is obvious from the statute that the legislature did not fail to distinguish between results and causes, nor did it equate the two. Causes are not results since they may flow from numerous factors, some more directly than others. Consequently, § 301(c)(2) provides that death is compensable if it was caused “in whole or in part” by the occupational disease. The approach taken by Consolidation Coal is, therefore, not supported by the statute.

Other courts have recognized that where there are multiple causes of death, in addition to the immediate non-compensable cause, the determination as to whether one of these causes gives rise to compensation is based on an analysis of its contribution to the fatality. Thus, recovery is not precluded because the immediate cause of death was a heart attack or some other non-occupational disease, provided that an occupational disease existed among the secondary causes of fatality and that it was a substantial factor in bringing about death. See Crucible Steel, Inc. v. Workmen’s Compensation Appeal Board, 65 Pa.Cmwlth. 415, 442 A.2d 1199 (1982); Elliott v. Workmen’s Compensation Appeal Board, 57 Pa.Cmwlth. 70, 425 A.2d 885 (1981); Hauck v. Workmen’s Compensation Appeal Board, 47 Pa.Cmwlth. 554, 408 A.2d 585 (1979).

These cases are more in accord with the plain meaning of § 301(c)(2), which recognizes, contrary to the rationale of Consolidation Coal, that death can be caused “in whole or in part” by an occupational diseases and still remain compensable. Therefore, Consolidation Coal set too stringent a standard. The more reasonable rule is articulated in Crucible Steel and its related line of cases.

The medical testimony required under § 301(c)(2) must be unequivocal in establishing the existence of the occupational disease as well as the causal connection between the disease and death. See Wheeling Pittsburgh Steel Corp. v. Workmen’s Compensation Appeal Board, 61 Pa.Cmwlth. 544, 434 A.2d 853 (1981); General Electric Co. v. Workmen’s Compensation Appeal Board, 61 Pa.Cmwlth. 511, 434 A.2d 841 (1981); Lehigh Valley Manpower Program v. Workmen’s Compensation Appeal Board, 61 Pa.Cmwlth. 430, 433 A.2d 935 (1981).

Therefore, we hold today that where there are multiple causes of death and the immediate cause was non-compensable, the requirements of § 301(c)(2) may be met by a showing with unequivocal medical evidence that, the deceased suffered from an occupational disease and that it was a substantial, contributing factor among the secondary causes in bringing about death. Proving merely, as appellant contends, that the disease was or may have been a contributing factor is inadequate.

In the instant case, the immediate cause of death was a heart attack coupled with numerous contributing or secondary factors. The expert medical testimony failed to establish unequivocally that the occupational disease existed or that it was a substantial contributing cause of death. Appellant thus failed to meet the requirements of § 301(c)(2).

Although we reject Consolidation Coal upon which the lower court relied, even under the less stringent standard we now adopt, appellant’s claim must fail. There is no need, therefore, to remand this matter.

Accordingly, the order of the Commonwealth Court is affirmed.

FLAHERTY, J., files a concurring opinion.

ROBERTS, C.J., concurs in the result.

LARSEN, J., files a dissenting opinion.

O’BRIEN, former C.J., and HUTCHINSON, J., did not participate in the decision of this case.

. Jurisdiction is vested in this Court pursuant to the Act of July 9, 1976, P.L. 586, No. 142 § 2, 42 Pa.C.S.A. § 724(a).

. We must agree with the Board that the referee acted improperly not only because it altered the findings of fact without taking new evidence, but also because the power of the Board is preeminent in workmen’s compensation proceedings. Accordingly, under circumstances such as these, where the Board’s remand was solely for recalculation of the award, the referee should have confined his revisions to the stated purpose of the remand. To allow otherwise will condone a practice that would obfuscate administrative procedures under the Workmen’s Compensation Act. See 77 P.S. § 854. See also Borovich v. Colt Industries, 492 Pa. 372, 424 A.2d 1237 (1981), (holding that a referee may make new findings of fact when the Board has remanded the case for that purpose). Contrary to the assertion of the Court below, Borovich does not allow the referee to ignore its directives from the Board in remanded cases and act in whatever manner it deems appropriate.

. Appellant observes that the Board reversed itself on the issue of causation in reliance upon Consolidation Coal Co. v. Workmen’s Compensation Appeal Board, 37 Pa.Cmwlth. 412, 391 A.2d 14 (1978). Because this case represented a change in decisional law as to the relevant issue of causation and was decided between the referee’s first award and the Board’s reversal, appellant concludes that Consolidation Coal was improperly applied retroactively.

This argument is meritless. It is well settled that changes in decisional law which occur during litigation will be applied to cases pending on appeal. Brubaker v. Reading Eagle Co., 422 Pa. 63, 221 A.2d 190 (1966); Daniels v. State Farm Mutual Auto Insurance Company, 283 Pa.Super. 336, 423 A.2d 1284 (1980); Leland v. J.T. Baker Chemical Co., 282 Pa.Super. 573, 423 A.2d 393 (1980). Moreover, the test as to whether a decision is applied prospectively or retroactively is whether it articulates a new and unforeshadowed rule of law. Schreiber v. Republic International Corp., 473 Pa. 614, 375 A.2d 1285 (1977). Consolidation Coal did not articulate a new rule but merely relied upon a statutory interpretation which was not wholly without precedent. It has long been held that such decisions are treated as relating back to the original statute because they are nothing more than interpretations of existing legislation. Buradus v. General Cement Products, 356 Pa. 349, 52 A.2d 205 (1947); Harry C. Erb, Inc. v. Shell Construction Co., Inc., 206 Pa.Super. 388, 213 A.2d 383 (1965). Thus, appellant’s retroactivity argument must fail.

. Act of June 2, 1915, P.L. 736, Art. III § 301(c), as amended by Act of March 29, 1972, P.L. 159, No. 61 § 7, 77 P.S. § 411(2).

. Appellant’s expert Dr. Dreibelbis, testified that his identification of silicosis as a contributing factor in the deceased’s death was merely a “supposition” made without the assistance of an X-ray. Deposition, W.H. Dreibelbis, M.D. 4/30/75 at 11. Appellant’s other expert was certain only that silicosis may have been a factor in reducing the deceased’s chances of surviving the fatal heart attack. Deposition, R.L. Hall, M.D., 1/19/77 at 11. Thus, there is a serious question as to whether appellant met her own liberal standard requiring only a showing that the disease was a contributing factor. Neither of her experts unequivocally established that silicosis contributed to the deceased’s heart attack.