Mathies Coal Co. v. Workmen's Compensation Appeal Board

591 A.2d 351, 140 Pa. Commw. 24, 1991 Pa. Commw. LEXIS 282

Opinions

PELLEGRINI, Judge.

Mathies Coal Company (Employer) files a Petition for Review appealing an Order of the Workmen’s Compensation Appeal Board (Board) affirming a Referee’s Decision granting the Fatal Claim Petition of Vickie Lynn Tau (Claimant).

*

Claimant’s deceased spouse, William P. Tau (Tau), worked for Employer as a utility man in the underground mine of the Employer. The utility man does all the odd jobs and gets “cuts” ready for the other miners. (29a).¹ Upon arrival at work on October 10, 1984, Tau and several members of the “crew” went down into the mine. (29a-30a). Upon arriving at the “face” of the area to be mined; Tau was requested by his foreman to get more fan cable so that the fan could be moved up to the next cut to mine coal. (33a). To get the cable, Tau had to go back about three hundred feet from the cut site. (33a) Thus, the cable had to be dragged by hand about 300 feet. The cable was 800 feet in length, 1 to IV2 inches thick, and had five smaller insulated wires inside with an encompassing thick rubber coating insulation. (34a, 43a-45a). The cable carries 440 volts of electricity to run the fan. (44a).

While Tau was getting the cable, a co-worker, Robert Troup (Troup), mined coal and completed a cut which took about 30 minutes. (47a, 62a). After completion of the cut, Troup turned around and saw a light on the floor about 100 feet away. (36a-38a, 63a). Troup ran to the light and found Tau lying on his back, unconscious. (41a). His legs were in a puddle of water a couple of inches deep. (39a-40a, 64a). He was not in contact with the cable, but it was lying next to him in loops. (41a-42a, 65a-67a). Tau had pulled the cable up close to the fan where he was found. (47a). Troup dragged Tau out of the water to a drier spot about ten feet away. (39a, 43a). While dragging Tau, Troup saw a “tape job” or splice where the cable had been repaired on one of the loops of the cable Tau had dragged to the fan. (35a, 44a, 65a-67a). Efforts to resuscitate Tau at the scene were unsuccessful and he was taken to Canons-burg Hospital where he was pronounced dead.

The next morning an autopsy was performed by Ernest L. Abernathy, M.D., and witnessed by Washington County Coroner Farrell Jackson. The gross diagnosis of the autopsy was that Tau died from a coronary hypoplasia and arteriosclerosis. (464a-466a). The death certificate, signed by Dr. Abernathy and dated the same day, indicated death attributable to ventricular fibrillation, due to coronary insufficiency, due to coronary arteriosclerosis and hypoplasia. (419a). On October 11, 1984, Coroner Jackson wrote a letter to the Employer, further explaining the autopsy results. Coroner Jackson reiterated the causes of death set forth in the death certificate. (518a-519a). He also made the following statement:

It has also been brought to our attention that he [Tau] was hanging miner cable of the 500 volt type, and I am not sure whether or not it was energized, but having this information and knowing of a past case which was considered a heart attack until we were able to determine it was electrocution, we examined Mr. Tau very closely for possible electrocution death. There was no indication found by the pathologist that he had in any way come in contact with any electric power source.

(518a-519a).

Despite the Coroner’s findings to the contrary, Claimant filed a Fatal Claim Petition on June 28, 1986, alleging that her husband’s death was due to cardiac arrhythmia produced by electric shock. (3a-4a). Following several hearings, the Referee issued a Decision concluding that Tau “died by virtue of an electrocution injury suffered within the scope and course of his employment which activated an arrhythmia in his heart already having a coronary heart disease called coronary hypoplasia” and awarded benefits. (13a). The Employer appealed the Referee’s Decision to the Board which affirmed. The Employer now appeals the Board’s Order.²

The Employer contends that Claimant has failed to satisfy her burden of proving by circumstantial evidence that Tau’s death was caused by electrocution. The Employer argues that the Referee’s findings are not supported by substantial evidence, since Claimant’s circumstantial evidence does not so preponderate in favor of the conclusions reached as to outweigh the results of the autopsy and other evidence and reasonable inferences therefrom to the contrary. The Employer further contends that the Referee erred by relying on the incompetent medical opinions of Claimant’s expert witnesses, Joshua Perper, M.D., and Jay M. Ziegler, M.D., because their opinions were based upon a critical fact, Tau’s contact with electricity, which is not in evidence.

In a workmen’s compensation case, the claimant has the burden of proving that the injury arose in the course of employment and was casually connected with the claimant’s work. Northeastern Hospital v. Workmen’s Compensation Appeal Board (Turiano), 134 Pa.Commonwealth Ct. 164, 578 A.2d 83 (1990); Karsaba v. Workmen’s Compensation Appeal Board (Bethlehem Steel Corp.), 71 Pa. Commonwealth Ct. 303, 454 A.2d 682 (1983). In the present case, although the Claimant has presented direct evidence that Tau had been carrying the cable prior to his death, there is no direct evidence that Tau actually came in contact with electricity or that the cable was energized. Thus, Claimant must prove that Tau died because of electrocution through circumstantial evidence.

In Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 138, 153 A.2d 477, 480 (1959), the Pennsylvania Supreme Court stated that:

When a party who has the burden of proof relies upon circumstantial evidence and inferences reasonably deducible therefrom, such evidence, in order to prevail, must be adequate to establish the conclusion sought and must so preponderate in favor of that conclusion as to outweigh in the mind of the fact-finder any other evidence and reasonable inferences therefrom which are inconsistent therewith. (Emphasis added.)

Moreover, evidence of an accident causing injury may be shown by direct or circumstantial evidence; in the latter instance, there must be a clear and logical indication of its occurrence. Adamchick v. Wyoming Valley Collieries Co., 332 Pa. 401, 3 A.2d 377 (1939); Evancik v. Coal Mining Co. of Graceton, 150 Pa.Super. 27, 27 A.2d 767 (1942).

Troup, Tau’s co-worker, testified that he found Tau lying in a couple of inches of water a few feet from the fan. (39a-40a, 64a). He stated that Tau’s body was cold, muddy and wet. (39a). He also stated that Tau was not wearing gloves and his hands were cold, muddy and wet. (39a, 41a, 68a-69a, 73a-74a). Troup further stated that Tau was unconscious and did not speak with him. (36a, 40a, 68a).

Troup also testified that the cable was lying in loops near Tau’s body, evidence that Tau had been pulling the cable up to the fan. (34a-36a, 39a, 41a-44a, 63a-67a). He testified that the cable was wet and muddy and had a “tape job” on one of the loops near Tau’s body, where it had been repaired. (35a, 43a-45a, 67a). He also stated that the cable carries 440 volts of electricity when energized. (44a).

Troup offered further testimony that it looked as if Tau may have been trying to put the cable up around the fan. (47a-48a). This would be done to make it easier to move the fan. (48a). Troup further testified that he found Tau and the cable next to a “buggy” route. (47a, 76a-77a, 83a). Troup stated that a “buggy” had previously passed by prior to when he discovered Tau. (47a). He stated that the “buggies” run on power from cables which winds up itself behind the “buggy.” (47a-48a).

The Claimant testified that when she identified her husband’s body, he had a black mark on his right ear which was not present when he left for work. (363a, 369a). When she touched the black mark, no discoloration came off onto her fingers, as would coal dust or dirt. (369a-370a). She also testified that his clothes were wet and he had holes in the soles and sides of his boots. (366a-369a). She also stated that her husband had told her two weeks earlier that he was shocked in the mine while loading a “buggy.”³ (374a). Finally, the Claimant testified that her husband’s only previous health problems were related to kidney stones and his gallbladder. (370a-373a).

The Claimant also introduced several exhibits consisting of Citation/Orders issued by the U.S. Department of Labor, Mine Safety and Health Administration (MSHA) as part of its investigation into Tau's death. Five Mine Citation/Orders were issued to the Employer: one for inadequate records of weekly electrical exams; one for permitting standing water to accumulate in the mine; two for improper grounding of the power systems in the mine; and one for inadequate insulation of the fan power cable. (428a-435a).

The first Citation/Order indicated that the Employer’s record of the weekly electrical exam was incomplete because it did not include an examination of the auxiliary exhaust fan and testing of the grounds on the “buggy” cars used in that section. (431a). The second Citation/Order required that standing water be removed from the section. (428a). The third Citation/Order indicated that the ground phase relay for the distribution box located in the section was improper since it was set to operate in excess of one second instead of instantaneously. (433a). The fourth Citation/Order indicated the same problem with the ground phase relay system providing power to the continuous miner. (434a). Finally, the fifth Citation/Order indicated that the power cable serving the auxiliary exhaust fan was not adequately insulated, and that a hole was discovered which would burn when power was applied. (435a)..

We find this evidence sufficient to support a finding by the Referee that Tau had, in fact, been electrocuted.⁴ As the factfinder, the Referee can reasonably draw this inference from the circumstantial evidence presented. See Smith v. Bell Telephone. The Employer contends, however, that this circumstantial evidence, including the medical testimony, does not “so preponderate as to outweigh” the opposite conclusions reached by the coroner and the MSHA’s investigation that Tau’s death was the result of natural causes. We find sufficient evidence of record which the Referee, in his exercise of discretion and factfinding, could rely to negate the results of the autopsy, and the same conclusion in the MSHA reports, so as to cause them to be outweighed by the circumstantial evidence of electrocution.

Both of the Employer’s expert medical witnesses found problems with the autopsy. Richard L. Heppner, M.D., testified that the autopsy did not include a microscopic examination of the tissues, the absence of which would not meet the criteria of a generally accepted comprehensive medical examination. (277a, 279a). Dr. Heppner stated that the organs were not measured or weighed precisely, nor was there an examination of the brain. (279a, 285a, 300a). He stated that the autopsy was a gross examination as opposed to a microscopic one. (279a). He also stated that the findings regarding Tau’s heart are inconsistent with his understanding of normal cardiac development and medical literature. (281a, 295a„ 298a-300a). Dr. Heppner then cited electrocution as one of several possible explanations for Tau’s death. (284-285a, 301a, 526a).

Harvey Mendelow, M.D., also testified as a expert medical witness for the Employer. Dr. Mendelow testified that his observation was “extremely limited both in terms of the extent of examination, the lack of examination in certain critical areas, and the lack of significant numbers of types of microscopic sections to delineate completely the pathology that was present, if any.” (315a). He states that there were no measurements or microscopic slides to support the autopsy’s finding regarding Tau’s heart, and that such slides are vital. (316a-318a, 330a, 333a). He also testified that he has never heard of, nor was able to find in medical literature, the specific medical diagnosis made by the autopsy. (318a-319a).

Dr. Mendelow further stated that he could not draw a firm conclusion as to cause of death, because no examination of the brain was done and there was insufficient measurements and microscopic evidence of the heart. (324a-325a, 330a). He concludes, stating that he could not, within a reasonable degree of medical certainty, establish a cause of death. (330a-331a).

Claimant’s medical expert, Dr. Perper, a certified pathologist, testified that he had written an article entitled “Electrical Injuries” published in the Legal Medicine Annual in 1976. (89a, 161a, 164a-174a). In his conclusion, Dr. Perper states: “In a majority of cases, electrical injuries are easily recognized microscopically. In diagnosing doubtful electrical marks, however, the microscopic examination of electrocution injuries is indispensable.” (Emphasis added.) (173a). Dr. Perper stated that the autopsy failed to mention the black mark Claimant saw on Tau’s ear, and an analysis of such a mark, if recognized by the coroner, would have been very important in confirming whether it was the site of the entrance or the exit of the electrical current. (100a, 113a). Dr. Perper testified that he was thus unable to examine any microscopic sections of tissue because they were unavailable. (113a-114a). Dr. Perper also stated that Tau’s brain was not examined, contrary to the normal procedure during an autopsy. (116a).

Dr. Perper further testified that the possible reason the hospital doctors or the coroner did not find or overlooked evidence of electrocution marks could have been due to the fact that Tau’s skin was wet, lowering the electrical resistance, and thus, leaving little or no visible marks. (105a-108a). He stated that Tau could have been electrocuted by touching the cable where it was damaged, through an electrical current travelling through the water or by an arc of the current from the cable to his body. (145a-149a).

Claimant’s other medical expert, Dr. Ziegler, testified that there was an absence of critical findings in the autopsy report. (206a). He states that the death certificate and autopsy reports are inconsistent with one another because the autopsy mentions a “recent small coronary occlusion” but the death certificate did not. (208a). He also indicated that the autopsy did not make mention of the black mark on Tau’s ear. (247a).

As for the MSHA reports, which indicate death by natural causes, the documents merely refer to the autopsy results and a report from the coroner’s office. (421a, 423a). The MSHA reports do not indicate that any independent medical examination was done other than the autopsy. Thus, the weight accorded the conclusion in these reports is dependent on the weight accorded the autopsy findings by the Referee, which, as discussed, would certainly be reduced when the expert medical testimony is considered.

The Referee’s finding that Tau’s death was a result of electrocution during the course of his employment with the Employer is supported by clear and logical inferences from the circumstantial evidence presented. Accordingly, we affirm the Order the Board.

ORDER

AND NOW, this 14th day of May, 1991, the Order of the Workmen’s Compensation Appeal Board dated February 14, 1990, is affirmed.

This case was assigned to the authoring judge on March 21, 1991.

1 . The numbers in parentheses refer to the Reproduced Record.

2 . Our scope of review is limited to determining whether any finding of fact is not supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights were violated. Cashmark v. Workmen’s Compensation Appeal Board (Great A & P Tea Company), 135 Pa.Commonwealth Ct. 464, 580 A.2d 1189 (1990).

3 . Hearsay evidence such as this is admissible, even over objection, if relevant and material to the facts at issue, to be considered for the additional light it sheds on the matter. First National Bank of Dunmore v. Workmen's Compensation Appeal Board (Trotta), 110 Pa.Commonwealth Ct. 370, 532 A.2d 526 (1987).

4 . The Claimant had also presented expert medical testimony to show that her husband’s death resulted from electrocution. She introduced the testimony of Dr. Perper and Dr. Ziegler. Dr. Perper, a specialist in forensic pathology, testified that "[i]n my opinion, Mr. Tau died either of electrocution either directly or through the activation of an arrhythmia in a predisposed heart with coronary arteriosclerosis and coronary artery hypoplasia.” (104a). Dr. Perper based this opinion on the facts he reviewed which indicated Tau came in contact with electricity. (104a-107a).

The Claimant also presented the expert medical testimony of Dr. Ziegler. Dr. Ziegler, who had been Tau’s physician since 1981, testified that based on all the information, his opinion, within a reasonable degree of medical certainty, was that Tau suffered a cardiac arrhythmia produced by electrical shock. (186a, 202a, 206a).

The Employer contends, however, that the opinions of Claimant’s expert medical witnesses are incompetent, because they are based on a critical fact, contact with electricity, not in evidence. While we do not disagree with this proposition, we do not find it fatal to Claimant’s case. Since there was sufficient circumstantial evidence that Tau came in contact with electricity, and the expert medical testimony does not dispute that Tau’s death would have resulted had he come in contact with it, the Referee’s finding of death by electrocution should stand.