Opinion
Argued November 20, 1980
February 24, 1981.
Workmen's compensation — Occupational disease — The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736 — Causation.
1. Under provisions of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, death benefits are not payable in an occupational disease case unless the claimant proves that death resulted from such disease which requires a showing that the disease in and of itself could have resulted in death. [76]
Argued November 20, 1980, before Judges MENCER, ROGERS and PALLADINO, sitting as a panel of three.
Appeal, No. 782 C.D. 1980, from the Order of the Workmen's Compensation Appeal Board in case of Wilma Refosco, widow of Lawrence v. Consolidated Coal Company and Commonwealth of Pennsylvania, No. A-77712.
Petition with the Department of Labor and Industry for death benefits. Benefits awarded. Employer and Commonwealth appealed to the Workmen's Compensation Appeal Board. Award reversed. Case remanded. Benefits denied by referee. Petitioner appealed to the Workmen's Compensation Appeal Board. Denial affirmed. Petitioner appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed. Application for reargument filed and stricken.
Benjamin L. Costello, with him, Kenneth J. Yablonski, for petitioner.
Daniel L. Fassio, Rose, Schmidt, Dixon, Hasley, Whyte Hardesty, for respondent, Consolidation Coal Company.
Gregory D. Geiss, Assistant Attorney General, for respondent, Commonwealth of Pennsylvania.
This is the second of three cases consolidated on appeal, which concern the intendment of Section 301(c)(2) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 411(2). Petitioner, the widow of a coal miner, appeals from an order of the Workmen's Compensation Appeal Board (Board), which denied her entitlement to death benefits under Section 301(c)(2) of the Act. We affirm the Board's order.
Section 301(c)(2) of the Act provides "/t/hat whenever occupational disease is the basis for compensation, . . . it shall apply only to disability or death resulting from such disease. . . ." (Emphasis added.)
In this case testimony from two physicians, one of whom prepared the autopsy report, showed that petitioner's husband died as the result of coronary arteriosclerosis and that petitioner's husband also suffered from myocardial infarctions, corpulmonale, anthracosilicosis (an occupational disease), emphysema, and bronchiectasis. Initially, the Referee found that anthracosilicosis "contributed in a substantial or significant manner" to the death. On remand the Referee found that "/i/n light of . . . Consolidation Coal Co. v. Workmen's Compensation Appeal Board, 37 Pa. Commw. 412, 391 A.2d 14 (1978), . . . claimant/widow/failed to produce legally sufficient and competent evidence which establishes or pinpoints that the decedent's death resulted from the occupational diseases claimed." The Referee failed to find that anthracosilicosis, in and of itself, could have resulted in the death of petitioner's husband.
Based upon the findings of the Referee and upon this Court's opinion in the first of the three cases consolidated on appeal, Elliott v. Workmen's Compensation Appeal Board, 57 Pa. Commw. 70, 425 A.2d 885 (1981), we affirm the Board's order denying benefits to petitioner, and we will enter the following
ORDER
AND NOW, February 24, 1981, the order of the Workmen's Compensation Appeal Board, Docket No. A-77712, dated March 6, 1980, is affirmed.