May Department Stores v. Workmen's Compensation Appeal Board

525 A.2d 33, 105 Pa. Commw. 580, 1987 Pa. Commw. LEXIS 2125
CourtCommonwealth Court of Pennsylvania
DecidedMay 4, 1987
DocketAppeal, No. 1066 C.D. 1986
StatusPublished
Cited by14 cases

This text of 525 A.2d 33 (May Department Stores v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
May Department Stores v. Workmen's Compensation Appeal Board, 525 A.2d 33, 105 Pa. Commw. 580, 1987 Pa. Commw. LEXIS 2125 (Pa. Ct. App. 1987).

Opinion

Opinion by

Senior Judge Narick,

The May Department Stores, d/b/a Kaufmann’s (Petitioner), has appealed from an order of the Workmen’s Compensation Appeal Board (Board), which affirmed the referees award of fetal claim benefits to Respondent, Eleanor K. Smith, the widow of former Kaufmann’s employee, John T. Smith, pursuant to Section 108(n) of The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of the Act of October 17, 1972, P.L. 930, 77 PS. §27.1(n). For the reasons which follow, we reverse.

The pertinent facts as found by the referee may be briefly summarized as follows. Respondent’s decedent, John T. Smith, was employed by Petitioner as a stationary engineer. On July 9, 1982, he reported and was admitted to Suburban General Hospital, complaining of a cough and fever. In his deposition, Smith’s internist, Dr. Houssani, testified that he initiated treatment for acute respiratory distress, pneumonia in the right upper lobe, Legionnaire’s Disease, and cardiomyopathy. Dr. Houssani also stated that Smith’s work was the cause of the Legionnaire’s Disease, and that that disease was a substantial contributing factor to his death on August [582]*58231, 1982, three days after he was released from the hospital.

In its appeal, Petitioner has raised three closely-related issues: 1) whether there was substantial evidence to support the referees finding that Respondents decedent contracted Legionnaires Disease at work, 2) whether there was substantial evidence to support the referees finding that Legionnaires Disease is an occupational disease within the meaning of the Act, and 3) whether Respondent proved by unequivocal medical testimony that decedent suffered from an occupational disease which was a substantial contributing factor among the secondary causes which brought about his death. Because, as explained below, we answer the first two questions in the negative, we need not reach the third.

It is well-settled that where, as here, the party with the burden of proof prevailed below, our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or necessary findings of fact were supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704; Estate of McGovern v. State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

In making his findings, the referee considered the depositions of three doctors: Dr. Houssani on behalf of Respondent, and Drs. Gaudio and Pasculle on behalf of Petitioner. He relied on the testimony of Dr. Houssani, whose deposition he found to be “credible”, in reaching the conclusion that decedents Legionnaires Disease was caused by his employment, and that the incidence of the disease was substantially greater in decedents occupation than in the general population.

It has long been recognized in workmens compensation cases that “where there is no obvious causal cop[583]*583nection linking an injury to the workplace, the connection must be established by unequivocal medical testimony.” Lewis v. Commonwealth, 508 Pa. 360, 498 A.2d 800 (1985). “Medical evidence which is less than positive or which is based upon possibilities may not constitute legally competent evidence for the purpose of establishing the causal relationship.” Id. at 366, 498 A.2d at 802. Further, the question of whether medical testimony is equivocal or not is a question of law, and is to be determined by reviewing the entire testimony of the medical witness. Id. Such testimony is to be “taken as a whole and a final decision ‘should not rest upon a few words taken out of the context of the entire testimony.’ Wilkes-Barre, City v. Workmen’s Compensation Appeal Board, 54 Pa. Commonwealth Ct. 230, 234, 420 A.2d 795, 798 (1980).” Id. at 366, 498 A.2d at 803.

A review of Dr. Houssani’s testimony reveals that he had been the decedent’s physician since 1979, treating him on several occasions. Decedent had a heart condition and, to the best of the doctor’s recollection, had been hospitalized twice for it within the past year. On direct examination, Dr. Houssani testified that when he first saw decedent in the hospital on July 10, 1982, decedent complained of chest pains, and said he developed a cough and fever while working. The doctor described decedent’s work as follows: “[H]e works in this department store I think and he works as an engineer, and he has to take care of the air-conditioning material and works in an atmosphere where he is cleaning the ducts; that kind of work.” On cross-examination, the doctor reiterated his testimony that decedent told him his cough was due to his work, but later recanted that statement after he was presented with the “Attending Physician’s Statement” that he had filled out in connection with decedent’s claim for weekly indemnity benefits. He had checked “no” on the form in response [584]*584to the question “did the sickness or injury arise out of patients employment?” He explained that the exact nature of the illness had not been determined as of July 19, 1982, the date on the form, because Legionnaires Disease had not yet been confirmed.

Dr. Houssani did testify that decedents disease was work-related. However, he did not volunteer to give details as to the basis for his opinion, and did not elaborate upon his cursory answers, as revealed by the following excerpts from his deposition:

(on direct examination):
Q Taking into account the history he gave you upon his admission, together with your treatment of him over the years, with a reasonable degree of medical certainty, what do you feel the cause of the Legionnaires Disease was?
A. Knowing how Legionnaires Disease affects people, I would say the place at work and his profession was the cause of Legionnaires Disease.
Q How so?
A Pardon?
Q What part of his exposure to what, Doctor?
A Sorry, you will have to explain that.
Q What part of his work or what description of his work led you to that conclusion?
A Working with the ducts and the air-conditioning plant; that kind of work, yes.
(on re-direct):
Q The incidence of Legionnaire Disease is substantially greater in Mr. Smiths occupation as a stationary engineer than in the general population as a whole? . . .
(objection by petitioners counsel as to qualifications)
[585]*585Q Your answer is yes?
A Yes.
(on re-cross):
Q Why do you conclude, Doctor Houssani, that Mr. Smiths occupation made him more susceptible to the Legionnaire Disease than others in the general population?
A Because that is the way things are.
Q The way things are, in what sense?

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Cite This Page — Counsel Stack

Bluebook (online)
525 A.2d 33, 105 Pa. Commw. 580, 1987 Pa. Commw. LEXIS 2125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/may-department-stores-v-workmens-compensation-appeal-board-pacommwct-1987.