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ADAMS v. DUNN (06/15/60)

June 15, 1960

ADAMS
v.
DUNN, APPELLANT.



Appeal, No. 2, April T., 1960, from order of Court of Common Pleas of Crawford County, May T., 1959, No. 36, in case of Mell V. Adams, Sr. v. W. L. Dunn. Appeal dismissed and record remitted for entry of judgment for claimant.

COUNSEL

John Will, Jr., with him Neely & Will, for appellant.

George J. Barco, with him Yolanda G. Barco, and Barco and Barco, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Wright

[ 192 Pa. Super. Page 320]

OPINION BY WRIGHT, J.

This is a workmen's compensation case. The referee found that claimant was totally disabled as the result of an injury by accident while in the course of his employment, and made an award. The Workmen's Compensation Board sustained the employer's appeal, and entered an order of disallowance. Upon claimant's appeal, the Court of Common Pleas of Crawford County vacated and set aside the board's order of disallowance, and reinstated the award. This appeal by the employer followed.

The record discloses that claimant, Mell V. Adams, Sr., aged 61 years, was employed as a grade checker

[ 192 Pa. Super. Page 321]

    for W. L. Dunn, who was engaged in the business of road construction. Claimant's customary job was to set grade and slope stakes so that the equipment operators could do the required cutting and filling. On June 17, 1957, when claimant reported for work at 7:00 A.M., there was so much water and mud where the work was to be done, resulting from a heavy rainfall, that the members of the road crew, some 25 in number, were sent home. There remained at work, in addition to claimant and a few men hauling gravel, only the superintendent, Foster, and the foreman, Marsteller. Claimant traveled up and down over the slopes of the road holding a tape measure and giving readings to Marsteller, who held the tape at the center of the road and recorded the various measurements. The cuts and fills upon which claimant was climbing were from 5 to 15 feet in length. The ground was mucky and slippery, stuck to claimant's boots, and traveling over it was difficult. The temperature recorded by the Meadville City Engineer was 75 degrees at 7:00 A.M., 84 degrees at 9:00 A.M., and 86 degrees at 11:00 A.M. The weather was "terribly muggy". Because the equipment was not in operation, claimant worked continuously marking the grades. Ordinarily, he would spend only ten to fifteen minutes an hour in that work, often not more than that during an entire day, and the rest of the time he would direct the equipment operators in removing or filling in dirt to the proper grade. Moreover, he usually did not work on wet days. After working several hours in the manner and under the conditions just described, claimant felt a weight on his chest "like a mule had set down" on it, and was unable to continue. He "got in the pickup and slumped over like". Claimant was taken to the office of Dr. Bailey, who sent him to the hospital. An electrocardiogram disclosed that claimant had suffered a muscle spasm of the heart resulting in myocardial

[ 192 Pa. Super. Page 322]

    damage. Claimant spent two weeks in the hospital, and has since been disabled. The doctor testified that the heart condition was "surely" the result of claimant's exertion under the conditions on the day in question. There was no evidence of any prior heart trouble.

The referee made, inter alia, the following finding of fact: "Seventh: Your Referee therefore finds as a fact that on June 17, 1957 there was a series of natural events, including high temperature, combined with high humidity, and a working area where it was difficult to walk, on a day when claimant was required to continuously climb up and down slopes and cuts, in contrast to the usual duties of grading where he was usually able to take short walks and long rests; and, as a result of these unusual conditions, on June 17, 1957, it was necessary for the claimant to exert unusual effort to perform his duties, which unusual exertion and effort caused him to suffer a coronary insufficiency, or heart attack, which has rendered him totally disabled from June 17, 1957 up to the present time and indefinitely into the future". On appeal, the board vacated this finding, and substituted therefor the following finding of fact: "Seventh: Claimant at the time of the occurrence of his disability on June 17, 1957, was doing only that which was necessary for the performance of his duties ...


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