Edwards v. Workmen's Compensation Appeal Board

BARBIERI, Senior Judge.

In this workmen’s compensation case, Jean Edwards (Claimant), as widow of deceased employee, John C. Edwards, requests review by us of a decision and order of the Workmen’s Compensation Appeal Board (Board) which reversed a referee’s award to Claimant pursuant to The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1031.¹

Basically, the Claimant in this case, widow of a volunteer fireman who met his death in the course of performing his volunteer fireman duties, has not been accorded by the Board the decedent’s status of a volunteer fireman as established by the Legislature and, consequently, the Board sought to apply to the death of a volunteer fireman requirements of causal relationship which apply in other cases, in disregard of the applicable, more favorable statutory provisions for firemen such as the one in this case. For the reasons that follow, we are required to reverse.

First of all, we note that the form of the petition is not controlling in workmen’s compensation cases.² It has long been established that strictness of pleading is not required in workmen’s compensation cases and that, if claimant is entitled to relief under any section of the Act, the petition will be considered as filed under such section. Andersen v. Workmen’s Compensation Appeal Board (National Forge Co.), 113 Pa.Commonwealth Ct. 601, 537 A.2d 971 (1988); Schneider v. Sears, Roebuck & Co., 206 Pa.Superior Ct. 282, 213 A.2d 83 (1965).

Furthermore, rather than consider the case under Section 301(c)(1) of the Act, 77 P.S. § 411(1), as the Board apparently has done, proceedings here should have been under Section 301(c)(2) of the Act, 77 P.S. § 411(2), on the basis of an occupational disease and specifically proceeded with under Section 108(o) of the Act, added by Section 1 of the Act of October 17, 1972, P.L. 930, as amended, 77 P.S. § 27.1(o), which reads:

(o) Diseases of the heart and lungs, resulting in either temporary or permanent total or partial disability or death, after four years or more of service in fire fighting for the benefit or safety of the public, caused by extreme over-exertion in times of stress or danger or by exposure to heat, smoke, fumes or gases, arising directly out of the employment of any such firemen.

The importance to the Claimant of the occupational disease status provided for firemen by the Legislature has been demonstrated at length by our Supreme Court in the case of Pawlosky v. Workmen’s Compensation Appeal Board, 514 Pa. 450, 462, 525 A.2d 1204, 1211 (1987), where it is stated:

Indeed, under the Act, it is the claimant seeking to recover for an occupational disease who is given a procedural or evidentiary advantage. Once such a claimant establishes that he has contracted an occupational disease and that the disease, at or immediately before the date of disability, was a hazard in his occupation or industry, he then becomes entitled to a non-conclusive presumption that his occupational disease arose out of and in the course of his employment____ (Emphasis added.)

The non-conclusive presumption, of course, is provided by Section 301(e) of the Act, added by Section 3 of the Act of October 17, 1972, P.L. 930, 77 P.S. § 413, as follows:

(e) If it be shown that the employe, at or immediately before the date of disability, was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed that the employe’s occupational disease arose out of and in the course of his employment, but this presumption shall not be conclusive. (Emphasis added.)

There can be no question that the Legislature has specifically legislated a special status to volunteer firemen, making it clear that they must be considered employes under Section 104 of the Act, 77 P.S. § 22. Thus, Section 601(a)(1) of the Act, added by Section 15 of the Act of December 5, 1974, P.L. 782, as amended, 77 P.S. § 1031(a)(1), provides in pertinent part, as follows:

(a) In addition to those persons included within the definition of the word ‘employe’ as defined in section 104, ‘employe’ shall also include:

(1) members of volunteer fire departments or volunteer fire companies, including any paid fireman who is a member of a volunteer fire company and performs the services of a volunteer fireman during off-duty hours, who shall be entitled to receive compensation in case of injuries received while actively engaged as firemen or while going to or returning from a fire which the fire company or fire department attended including travel from and the direct return to a fireman’s home, place of business or other place where he shall have been when he received the call or alarm ... or while riding upon the fire apparatus which is owned or used by the fire company or fire department or while performing any other duties of such fire company ...

As ruled by this Court in Marcks v. Workmen’s Compensation Appeal Board (City of Allentown), 119 Pa. Commonwealth Ct. 214, 547 A.2d 460 (1988), it was error for the referee there, and the Board here, to deny to Claimant the benefit of the Section 301(e) presumption. Section 301(e) applies to the enumerated diseases listed in Section 108, including Section 108(o) quoted above. Bley v. Department of Labor & Industry, 484 Pa. 365, 399 A.2d 119 (1979); Marcks.

Indeed, we stated in Marcks, as follows:

It is the legislature’s express intent that firemen seeking recovery for occupational diseases resulting from the hazards of their trade be given an evidentiary advantage. Our Superior Court, analyzing this intent in DeMascola v. City of Lancaster, 200 Pa.Superior Ct. 365, 189 A.2d 333 (1963), noted that the legislature has decreed by enacting Section 108(o) that ‘diseases of the heart and lungs,’ are occupational diseases of the fire fighting occupation. The Court further elaborated that:

The legislature, by this latest amendment in the case of fireman [sic], has made it unnecessary to prove that the disease of the heart and lungs is peculiar to the occupation of firemen and not common to the general population. It is only necessary to prove the existence of the hazards described in the Act____

Id. 119 Pa.Commonwealth Ct. at 219, 547 A.2d at 463 (emphasis added).

We have here proof of the diseases enumerated in Section 108(o) suffered by decedent and causing his death while on duty, described in the death certificate, R.R. 25a, expressly admitted without objection, R.R. 13a-14a, as follows:

Immediate Cause (a) Acute Myocardial Infarction

Due to (b) Hypertension

Due to (c) Chronic Obstructive Pul. Dis.

So we have here death from “diseases of the heart and lungs,” the compensable hazards described in the Act as noted in the above quote from Marcks, and of course a death certificate is “prima facie evidence of its contents.” Hauck v. Workmen’s Compensation Appeal Board, 47 Pa.Commonwealth Ct. 554, 408 A.2d 585 (1979). We find no competent proofs to rebut the prima facie proofs established by the death certificate.

Given that the 56 year old decedent in this case with 25 years of exposure to fires, R.R. 15a, some fires actually attended the month before his death, R.R. 16a, plus the stress of a call as the dispatcher to a fire on the day of his death, although no fire remained when he arrived, plus the recently unaccustomed effort involved in driving a primitive fire truck, it is understandable and legally acceptable for the referee to have found, as he did, that the decedent’s death was work-related.³ See Finding of Fact No. 5.

As this Court stated in Marcks:

We find that Employer has presented no such competent evidence to rebut this presumption. [Section 301(e) in this case.] The opinion of Employer’s medical expert that Claimant’s thirty-three years of exposure to the hazards of an occupational disease had a ‘practically non-existent’ effect on Claimant’s heart and lungs, which the referee chose to accept in his Finding of Fact No. 8, is incompetent as a matter of law.

Our Superior Court concluded over twenty-five years ago that:

We agree with counsel for the appellant that it is common knowledge that existing heart and lung diseases may be aggravated by extreme over-exertion and by the type of dangers, such as inhalation of flame and fumes, and exposure to extreme heat, to which firemen by this occupation are exposed____ (Emphasis added.)

DeMascola v. City of Lancaster, 200 Pa.Superior Ct. 365, 379, 189 A.2d 333, 340 (1963).

Marcks, 119 Pa.Commonwealth Ct. at 220-221, 547 A.2d at 464.

While the Section 301(e) presumption has not been rebutted in this case, the referee’s reliance upon the opinion testimony of Dr. Stone, Decedent’s attending physician, although the language could have been clearer, certainly added support for the causal relationship finding. Dr. Stone testified:

Q. If you can, doctor, would you answer the question?

A. The facts I knew surrounding the event as so stated, as far as the question itself, yes, I definitely feel that the event that was surrounding his cause of death was a direct result as to what he was doing at the time.

R.R. p. 36a.

In fact, Dr. Stone, elsewhere in his testimony, clearly attributed the deceased employee’s death to a heart attack. Specifically, he testified as follows:

I can state my opinion. In my opinion, his cause of death was an acute coronary event and so stated on his death certificate. Again, there was no autopsy done, however; I’ve been suspicious throughout his care and felt that at the time of death it was due to an acute coronary event.

R.R. 32a.

The Board does not credit this opinion testimony of Dr. Stone, but instead relies upon excerpts which, in light of the referee’s decision in favor of Claimant, the referee, in his exclusive role as fact-finder, could well have properly chosen to reject or factually interpret differently from the Board’s view.⁴

It goes without saying, of course, that the Board exceeded its scope of review insofar as it based its decision on the testimony of Employer’s medical witness when the referee, exercising his exclusive prerogative, accepted the testimony and opinion of Decedent’s attending physician. The Board may not reweigh the evidence, a usurpation of solely the referee’s prerogative. Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Skirpan), 132 Pa.Commonwealth Ct. 277, 572 A.2d 838 (1990). See also Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Sebro), 132 Pa.Commonwealth Ct. 288, 572 A.2d 843 (1990).

The Board, in rejecting some of Dr. Stone’s testimony did so on the basis that the hypothetical question put to Dr. Stone included circumstances at the moment of death apparently gleaned from a report to Fire Chief Hines by a registered nurse, a “volunteer fireperson,” who was riding with decedent when he suffered his fatal heart attack. Chief Hines’ testimony in this regard was not objected to. R.R. 15a. However, as we will later point out, this form of medical presentation as to causation is not required in this case under Sections 108(o) and 301(e). Furthermore, we must disapprove the Board’s action in attaching weight to observations of Employer’s medical witness, Dr. Groh, since this testimony was not accepted by the referee.

Controlling is the established law that, contrary to the view of the Board, it is unnecessary for the Claimant to establish causal relationship in cases such as this one, since this is granted by the Legislature as a presumption under Section 301(e); although, of course, it can be rebutted. Examination of the record in this case reveals no testimony that would rebut the presumption created by Section 301(e) and, therefore, it was error for the Board to require unequivocal medical testimony to establish causal relationship in a case involving a fireman, where it has long been settled that special considerations are statutorily granted to firemen in workmen’s compensation cases, and are accorded to volunteer firemen. Marcks, 119 Pa.Commonwealth Ct. at 220, 547 A.2d at 463-464; Bley.

It is only necessary to again point out that the referee resolved factual issues, such as there were, in favor of the Claimant and, therefore, it was error to deny to this Claimant the benefit of statutory provisions and the presumption provided for firemen by the Legislature. Therefore, we reverse and reinstate the referee’s award.

ORDER

AND NOW, this 31st. day of December, 1990, the order of the Workmen’s Compensation Appeal Board, dated January 8, 1990, at Docket No. A-97589, is hereby reversed and the decision of the referee is reinstated.

PALLADINO, J., filed a dissenting opinion.

1 . This case was reassigned to the opinion writer on November 9, 1990.

2 . The petition's averments do not specify death from an occupational disease which will appear hereafter to be the case.

3 . As noted, this is an occupational disease case requiring not an incident but an extended exposure, four years as provided in Section 108(o ). Decedent had 25 years.

4 . The Board noted the use by Dr. Stone of the word “suspicions” instead of "opinion” in some portions of his testimony. Aside from the fact that a positive opinion is not necessary in this case as we have pointed out, examination of all of Dr. Stone’s testimony establishes this as his tentative opinion during his long service as Claimant’s physician; it does not weaken his opinion that the “suspicion" became definite as to the nonrebutted cause of death.