DocketNumber: Appeal, No. 903 C.D. 1983
Citation Numbers: 101 Pa. Commw. 478, 516 A.2d 836
Judges: Barry, Craig, Kalish
Filed Date: 10/23/1986
Status: Precedential
Modified Date: 6/24/2022
Opinion by
This is an appeal by the Richard Greene Coal Co., employer, of an order of the Workmen’s Compensation Appeal Board (Board) which reversed the referee’s denial of benefits to claimant Florence Shirey. Mrs. Shirey had filed for fetal claim benefits alleging that her husband died of anthraco-silicosis, a form of pneumoconiosis resulting from prolonged exposure to the dust of anthracite or bituminous coal and a compensable occupational disease under Section 301(c)(2) of the Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §411(2).
Florence Shirey is the widow of Maynard Shirey. Mr. Shirey was employed virtually all of his working life in or around coal mines. He worked the majority of the time outside of the mines both as a laborer on the tipple and as a trucker hauling coal. He was exposed to coal dust during this period. On October 1, 1976, Mr. Shirey suffered a stroke and never returned to work. His health deteriorated gradually over the next three and a half years until his death on May 3, 1980 of a myocardial infarction (heart attack).
On May 9, 1983, the Pennsylvania Supreme Court decided the case of McCloskey v. Workmen's Compensa
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.
Id. at 101, 460 A.2d at 241.
The issue before us then is whether the claimant established by unequivocal medical evidence that Mr. Shirey suffered from pneumoconiosis and that.it was a substantial contributing factor among the secondary causes in bringing about Mr. Shireys death. We remand.
In Bureau of Workers Compensation v. Uchoker, 93 Pa. Commonwealth Ct. 400, 501 A.2d 703 (1985), the Board, in applying the Consolidation Coal standard, had reversed the referees grant of fatal claim benefits determining that the referee made no finding that pneumoconiosis actually caused the death. The referee had made a finding that pneumoconiosis was a “significant contributing factor” to death. The trial court, deciding the appeal after the McCloskey decision was rendered, found that the referees findings satisfied the McCloskey test and reversed the Board. We affirmed. We reasoned that a claim is not automatically thrust outside the realm of McCloskey because the words
Unfortunately, we are unable to reach such a final determination of whether the standard set forth in McCloskey was met in the case before us. The referee did find that pneumoconiosis was a contributing cause of Mr. Shireys death. Because the Consolidation Coal rule was the standard existing at the time of his decision, the referee understandably saw no need for further elaboration upon the degree to which the medical evidence established that pneumoconiosis contributed to Mr. Shireys death. In light of our limited scope of review, however, we must remand for more precise findings of whether the medical evidence unequivocally established that pneumoconiosis was a substantial and contributing factor to Mr. Shireys death.
We recognize the considerable delay claimant has suffered in awaiting a resolution of her claim. We, therefore, remand this matter to the Board with directions to remand to the referee for resolution within ninety days.
Order
Now, October 23, 1986, it is ordered that this case be remanded to the Workmens Compensation Appeal Board. The Workmens Compensation Appeal Board is ordered to remand this matter to the referee for resolution within ninety days of this order in a manner consistent with this opinion.
Jurisdiction relinquished.
During his lifetime, Mr. Shirey filed a disability claim petition. After it became apparent that Mr. Shirey’s illness was termi