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SIMON v. FINE (07/20/50)

July 20, 1950

SIMON
v.
FINE



COUNSEL

John R. Dierst, Jr., O. W. T. Peterson, and Griggs, Moreland, Blair & Douglass, Pittsburgh, for appellant.

Esther Kochin and Abraham E. Rosenfield, Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.

Author: Dithrich

[ 167 Pa. Super. Page 388]

DITHRICH, Judge.

Claimant, a kosher meat inspector, contracted Weil's disease while employed in defendant's slaughter house. The disease is a malady which develops from oral ingestion of anything contaminated by a certain type of rat, and particularly by rat excreta. He became ill July 26, 1948, and in his claim petition for compensation for accidental injury he fixed that as the date of the accident. At the hearing he changed the date to July 16, to conform with the medical testimony that there is an incubation period of five to twenty days. He then traced his infection back to an incident that occurred on the earlier date.

He claims that when he went to eat his lunch on July 16 he found that it had been knocked from the bench or shelf where he had placed it to the floor and that the paper in which it was wrapped had been torn. He ate his lunch, however, and it was not until after he became ill and had been advised by his physician as

[ 167 Pa. Super. Page 389]

    to the nature of his illness that it occurred to him that his lunch must have been contaminated the day he found it lying on the floor. He did not see the rats knock it onto the floor or tear open the wrapping, nor did he notice any foreign substance on the food. He said the place had been infested with rats during the five years that he had worked there but never before had they 'been at' his lunch.

The referee found as a fact that the claimant did not meet with an accident in the course of his employment with defendant on July 16 or July 26, 1948. Claimant also worked for the Pittsburgh Provision & Packing Company, but he said there was an iron cupboard there where 'we keep our lunch' and that the rats couldn't get into it.

On appeal from the dismissal of his petition by the referee, the Compensation Board affirmed the findings of fact and conclusions of law of the referee but in its opinion said: 'The trouble with the claimant's case is that he has not in law proved a compensable accident.' (Italics supplied.) That opened the door for the 'legal conclusion' by the learned President Judge of the court below that the Board had erred in concluding that 'there was * * * no accident within the meaning of the law.'

The court below and the claimant on this appeal rely chiefly on Rittenberg v. Abbott Laboratories, 158 Pa. Super. 400, 45 A.2d 400. Both employ the same wording in referring to it as a 'strong parallel' to the case at bar. But in the Rittenberg case the employee, who was in the habit of taking bicarbonate of soda, died as a result of taking cyanide salts, similar in appearance to bicarbonate of soda. The real question there was whether the poison was taken intentionally with a view of suicide, or accidentally ...


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