Musiolowski v. Workmen's Compensation Appeal Board

Dissenting Opinion by

.Judgé MacPhail:

I respectfully dissent.

In Kusenko v. Republic Steel Corp., 506 Pa. 104, 484 A.2d 374 (1984), our Supreme Court indicated that we erred in our opinion in that case,1 when we applied *497the “causal relationship” standards set forth in Evon v. Workmen's Compensation Appeal Board (U.S. Steel Corp.), 70 Pa. Commonwealth Ct. 325, 453 A.2d 55 (1982), rather than the “substantial, contributing factor” standard for secondary causes of death, first enunciated in McCloskey v. Workmen's Compensation Appeal Board, 501 Pa. 93, 460 A.2d 237 (1983).

In emphasizing that the substantial, contributing factor standard was that which should be applied, the Supreme Court said in Kusenko:

To hold that the occupational disease be the sole or direct cause of the disability or death ... is entirely too strict a standard for a claimant to meet, the result being compensation in only the fewest number of cases. On the other hand to say that any contributing cause is sufficient no matter how slight is compensable ... is too heavy a burden to place on industry. Such a standard would effectively reduce thé Workmens Compensation Act to a general health and insurance plan. This limitless liability is clearly not what the framers of §3Q2(a)(2) had in mind.

506 Pa. at 108, 484 A.2d at 376-377 (citations omitted).

In the instant case, the majority quotes partially from Dr. Krifcher’s testimony. I consider the rest of what that witness said at the same point in his testimony to be dispositive of the issue now before us. The physician testified immediately following the testimony quoted on pages 2 and 3 of the majority’s slip opinion as follows:

Q. How did you characterize that in your protocol as to its (coal workers’ pneumoconiosis) role in the cause of death?
A. As I said, the main cause of death was arteriosclerotic heart disease with a thrombosis of the coronary artery and extensive myocardial
*498infarction. Then it is my opinion that the extensive coal workers’’pneumoconiosis did contribute and wasi a contributory cause.

(Emphasis added.) Deposition of Dr. Krifcher at page 14. •

That testimony is remarkably similar to that which our Supreme Court rejected in Rusenko.

A. Yes, it would be my opinion that because of the coal workers’ pneumoconiosis that he was unable to ward off the bad effects of the bronchogenic - carcinoma. In other words, the bronchogenic carcinomá would cause him to gradually deteriorate and lose his appetite, and things.like that. And I think that the coal workers’ pneumoconiosis would aggravate that— would aggravate that in the progression of the symptoms from the bronchogenic carcinoma.
A. In my opinion; the direct cause of death was a bronchogenic carcinoma; and I felt that the coal workers’ pneumoconiosis was a causative factor in his death.

(Emphasis added.) Footnote 8, page 6 of slip op. in Republic Steel Corp.

Because Dr. Krifcher here could say no' more than that .the coál worker’s pneumoconiosis was a contributory cause, in the decedent’s death, I believe the Board was correct in its application of Rusenko and I would affirm. . ■ , :

This Courts opinion in Republic Steel Corporation v. Workmen's Compensation Appeal Board (Kusenko), was not reported but it was filed December 7, 1983 to No. 2157 C.D. 1982.