# McCloskey v. Workmen's Compensation Appeal Board > Supreme Court of Pennsylvania · May 19, 1983 · 501 Pa. 93 URL: https://www.frixlaw.com/law-library/cases/9757823 ## Case - **Full name:** Margaret McCLOSKEY (Widow), Harold G. McCloskey (Deceased), Appellant, v. WORKMEN’S COMPENSATION APPEAL BOARD and J.H. France Refractories, Inc. and Commonwealth of Pennsylvania, Appellees - **Court:** Supreme Court of Pennsylvania - **Decided:** May 19, 1983 - **Citations:** 501 Pa. 93; 460 A.2d 237; 1983 Pa. LEXIS 550 - **Precedential status:** Published - **Opinion:** Concurrence by Flaherty - **Judges:** O'Brien, Roberts, Nix, Larsen, Flaherty, McDermott, Hutchinson - **Cited by:** 78 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9757823 ## How later opinions describe it (automated extraction) - stating general principle, gathered from various, non-worker’s compensation cases, that “[i]t is well settled that changes in decisional law which occur during litigation will be applied to cases pending on appeal.” - holding that compensable claim exists even if multiple causes of death from lung disease are present, so long as claimant shows occupational disease was substantial contributing factor - noting that cases that “merely rely upon a statutory interpretation which was not wholly without precedent . . . are treated as relating back to the original statute because they are nothing more than interpretations of existing legislation” ## Opinion text FLAHERTY, Justice, concurring. I concur in the result reached by the majority on this record. The pertinent testimony of Dr. Hall is as follows: Q. Could you tell us how long he was a patient of yours? A. I’d say approximately nine years. Q. And, tell us, please, doctor, basically the nature of the treatments or the nature of the problems that Mr. McCloskey was having. A. His problems involved recurrent chest infections, chronic obstructive pulmonary disease related to emphysema and silicosis. Q. Now in your letter, doctor, to Attorney Cimino . . . you said to him ‘it is also my opinion that the obstructive pulmonary emphysema and silicosis was a major contribution to his death.’ A. Right. Q. Alright. Although he died basically of a myocardial infarction. Could you please explain what you mean by what nature of silicosis was a major contribution to his death. A. We were certain that Mr. McCloskey did have pneumoconiosis and the chronic obstructive pulmonary disease. Also, he had hád angina at least for five or six years. I suspect it was possibly the acute myocardial infarction that caused his death, but we know that if a patient does have a heart attack or an acute myocardial infarction, that if he does have any evidence of chronic obstructive pulmonary disease or pulmonary emphysema, that his blood gases usually indicate that the oxygen concentration in the blood stream is usually decreased to varying de *103 grees. But, we also know that if a patient does have acute myocardial infarction — a patient with chronic obstructive pulmonary disease makes the ability to survive much more difficult because of a lack of oxygen, the injury to the heart muscle due to the thrombosis in the coronary artery be the amount of damage the heart muscle is directly related to how much oxygen gets into that tissue, and if a patient does have the chronic obstructive pulmonary disease superimposed on coronary artery disease, it will — they’ll do very badly with having any evidence of an acute myocardial infarction, so I felt that his lung disease was an important contributing factor to his death when he died in 1974. We know that with any patient with a heart attack, if their lungs are normal their chances of surviving are much better than if they have any degree of chronic obstructive pulmonary disease. Q. Silicosis or the general classification of pneumoconiosis, silicosis would be considered a chronic obstructive pulmonary disease. A. Right. Q. I understand your testimony to be that the possibility of his survival is decreased because he has this silicosis condition. A. Right. The possibility of his surviving the heart attack when he had it there was decreased because of that silicosis, in that the prime thing is the amount of oxygen supplied to the heart muscle that gingered, and if they have the chronic obstructive pulmonary disease, the oxygen concentration getting into that heart muscle is decreased much more than just the heart attack. So, it really aggravates the infarction and heart attack markedly- Q. There’s no way that you can tell, though, whether he would have survived independent of the silicosis condition? A. No, there’s no way. Q. So, he could have expired had he not had silicosis. *104 A. Yes, he could have. Q. And then, there’s no way that you can tell with a reasonable degree of medical certainty that the silicosis was the cause of death. A. No, but it was a markedly contributing factor to the death because of the damage that had been done to the lungs. . .. Q. It was a contributing factor in the sense that it decreased his possibility of survival of the myocardial infarction? A. Right. And probably with an anoxia like that, the extent of the injury of the heart muscle would be larger. The medical testimony is that silicosis was not the cause of death; rather the testimony describes silicosis as a condition which can operate to impair the ability to recover from a myocardial infarction. The record is devoid of any unequivocal medical testimony establishing a causal connection between the occupational disease, silicosis, and McCloskey’s death. The legislative language which governs is: [Wjhenever 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.... 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 hazard of occupational disease. . . . Act of June 2, 1915, P.L. 736, art. III, § 301(c), as amended, 77 P.S. § 411(2) (Supp.1982-1983). The meaning of “result” is quite clear in its common usage: To result is “to proceed, spring or arise as a consequence, effect, or conclusion,” Webster’s Third New International Dictionary 1937 (1976). “Result is consequence that connotes end or conclusion; it is consequence, therefore, that achieves. Derivatively result means leap back; it contains something of the idea of proving or checking or calculating.” John Baker Opdycke, Mark My Words, a Guide to Modern Usage and Expression 210 (1949). “Result” implies effect from a previous cause, *105 Id. at 258, not simply an event which follows, and “contributory factors” are not synonymous with causes. A reading of the statute, giving the plain meaning to the words chosen by the General Assembly, leads me inescapably to the conclusion that the Commonwealth Court correctly affirmed the Board’s determination that the referee’s decision on causation was not supported by the medical evidence of record. “The proper test for the legal sufficiency of expert medical testimony on the issue of causation is that the expert must testify that in his professional opinion the result in question came from the cause alleged.” Crucible Steel, Inc. v. W.C. A.B., 65 Pa.Commonwealth Ct. 415, 420, 442 A.2d 1199, 1202 (1982). In Crucible, supra, medical testimony that silicosis was “the most significant cause” of death met the statutorily prescribed burden of proof. In contrast, medical testimony that an occupational disease was a “substantial contributing factor”, at 241, a “major contributing factor,” “contributed in a substantial or significant manner,” or “contributed to and accelerated” the employe’s death simply is not sufficient to prove the death “resulted] in whole or in part from the employe’s exposure to the hazard of occupational disease.” Crucible Steel, supra, 65 Pa.Cmwlth. at 418 , 442 A.2d at 1201 , and cases cited therein. Thus, where, as here, the medical expert testifies that the occupational disease was “a markedly contributing factor to the death,” such testimony falls short of the standard prescribed by the Act. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9757823. Public record. Not legal advice.