Kusenko v. Republic Steel Corp.

484 A.2d 374, 506 Pa. 104, 1984 Pa. LEXIS 368

• Court: Supreme Court of Pennsylvania
• Decided: November 20, 1984
• Docket: 27 W.D. Appeal Dkt. 1984
• Status: Published

Opinions

OPINION

McDERMOTT, Justice.

■ At issue in this appeal is the standard of causation which triggers the recovery of benefits under Section 301(c)(2) of the Workmen’s Compensation Act.¹ The facts are set forth below.

This case arose as a result of a fatal claim petition by Minnie Kusenko (appellee) after the death of her husband Mike Kusenko (decedent). Decedent had worked in the coal mining industry for thirty-six years in the employ of Republic Steel Corporation (appellant). After receiving evidence from both sides, the referee found that decedent died as a result of anthracosilicosis and/or coal miner’s pneumoconiosis due to exposure to coal dust while working in the mines. The immediate cause of death stated on the death certificate however, was carcinoma of the lung. Coal worker’s pneumoconiosis was listed as “other significant causes.”

The referee’s award was affirmed by the Pennsylvania Workmen’s Compensation Appeal Board (Board). The Board based their decision on Crucible Steel Inc. v. Workmen’s Compensation Appeal Board, 65 Pa.Cmwlth. 415, 442 A.2d 1199 (1982) stating that the decedent’s pneumoconiosis, which was a major reason for his ultimate death, was sufficient to meet the standard of causation for fatal claim benefits. The Commonwealth Court affirmed, applying the standard it set forth in Evon v. Workmen’s Compensation Appeal Board, 70 Pa.Cmwlth. 325, 453 A.2d 55 (1982). In order to recover benefits under the Evon standard, all that is required is a “causal relationship” between the disease and the death or disability. In applying this standard, the Commonwealth Court chose to ignore the standard set forth by a plurality of this Court in McCloskey v. Workmen’s Compensation Appeal Board, 501 Pa. 93, 460 A.2d 237 (1983) which would require that the occupational disease be a “substantial, contributing factor among the secondary causes bringing about death.” Id., 501 Pa. at 101, 460 A.2d at 241. Appellant herein petitioned this Court for appeal and we granted allocatur. After consideration, we reverse and remand to the Commonwealth Court for a decision consistent with this opinion.

The primary import of this case is to set forth a definitive standard for the determination of benefits under the Workmen’s Compensation Act for deaths related to occupational hazards. Specifically, when a non-compensable disease of life which is unrelated to work intervenes and death results, what role must the occupational disease play so that benefits are forthcoming?

Resolution of this issue necessarily requires an examination of the statutory language which governs the recovery of benefits in a Workmen’s Compensation case.

Pursuant to § 301(c)(2) of the Act:

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).

In McCloskey, supra, we focused on the statutory language which provided that this section shall apply to death which results “in whole or in part from the employee’s exposure to the hazard of occupational disease” Id., 501 Pa. at 100, 460 A.2d at 240; and we rejected the standard of Consolidation Coal Co. v. Workmen’s Compensation Appeal Board, 37 Pa.Cmwlth. 412, 391 A.2d 14 (1978) i.e. that 301(c)(2) requires that death be “immediately caused” by the occupational disease. We also implicitly rejected the rather liberal standard of Evon, supra, which was relied upon in this case by the Commonwealth Court.

The test announced in McCloskey, supra, which we reaffirm today, provides 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.

501 Pa. 93, 101, 460 A.2d 237, 241.

We are convinced that this standard accurately reflects the intent of the legislature, and balances the competing interests of the parties.² To hold that the occupational disease be the sole or direct cause of the disability or death e.g. Consolidation Coal, supra, 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 e.g. Evon, supra, is too heavy a burden to place on industry. Such a standard would effectively reduce the Workmen’s Compensation Act to a general health and insurance plan. This limitless liability is clearly not what the framers of § 302(a)(2) had in mind.

We therefore hold that the McCloskey standard shall be applied in those cases involving death benefits under 301(c)(2) of the Workmen’s Compensation Act. 77 P.S. § 411(2).³

In light of our disposition, we reverse and remand to the Commonwealth Court for a decision consistent with this opinion.

LARSEN, J., filed a dissenting opinion. FLAHERTY, J., filed a dissenting opinion. HUTCHINSON, J., filed a dissenting opinion.

1 . Act of June 2, 1915, P.L. 736, art. III, § 301(c), as amended, Act of December 5, 1974, P.L. 782, No. 263, § 4, 77 P.S. § 411.

2 . We note that in recent years, standards of causation similar to the one set forth in McCloskey have been adopted by a number of states coping with the problems related to occupational disease and death. For example, the Nebraska Supreme Court has held that in order to receive benefits the occupational disease must be a substantial contributing factor to disability Mann v. City of Omaha, 211 Neb. 583, 319 N.W.2d 454 (1982). The West Virginia Supreme Court requires that a claimant establish that the occupational disease be a major contributing factor. Elsie Troxell, Widow of Lewis Troxell v. State Workmen’s Compensation Commissioner and Consolidation Coal, (per curiam opinion filed December 14, 1983, No. 15951). In 1983 the Supreme Court of North Carolina in a case involving disability as a result of cotton dust exposure held that in order for disability arising from an occupational disease to be compensable there must be a showing that the occupational disease contributed significantly to that disability. Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359 (1983).

3 . Although Mr. Justice Hutchinson does not join this opinion, we note that he expressly agrees with the standard of causation articulated. See Dissenting Opinion, Hutchinson, J.