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BANAS v. EAGLE COAL COMPANY (ET AL. (12/14/61)

December 14, 1961

BANAS
v.
EAGLE COAL COMPANY (ET AL., APPELLANT).



Appeal, No. 283, April T., 1961, from judgment of Court of Common Pleas of Westmoreland County, April T., 1961, No. 123, in case of Andrew Banas v. Eagle Coal Company et al. Judgment affirmed.

COUNSEL

Robert W. Smith, Jr., with him Smith, Best & Horn, for appellant.

Henry J. Mahady, with him Mahady & Mahady, for appellee.

Before Ervin, Wright, Woodside, Watkins, Nontgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Wright

[ 196 Pa. Super. Page 582]

OPINION BY WRIGHT, J.

This is a workmen's compensation case in which the Referee, affirmed by the Board, found that claimant had sustained a compensable accident, and made an award on the basis of total disability for forty-three weeks, and thereafter for thirty per cent partial disability. Upon appeal to the Court of Common Pleas of Westmoreland County, the order of the Board was affirmed, and judgment was entered in favor of the claimant. The employer's insurance carrier has appealed. The factual situation appears in the following excerpt from the opinion below:

"Claimant was a mine foreman for the defendant coal company and prior to that time was an assistant mine foreman and fire boss for the same company. All of these jobs were supervisory in nature and required little or no manual work, but only supervision, direction and planning.

"On May 18, 1959, the defendant coal company closed the mine, but advised the claimant that he was to continue in their employment until the end of the month. He was directed to, and did occasional manual labor and maintenance jobs about the mine. On May 25, 1959, he was directed to change a track switch in the mine. This entailed lifting and dragging the switch frog, which weighed about 100 pounds, the track rails, which weighed 200 pounds, and also the lifting and laying of 40 pound wooden ties underneath the track.

"The testimony at the time of the hearing discloses that the work of laying track and switch is considered teamwork, or at least two men undertake to do the job. The testimony further disclosed that it was one of the more difficult tasks in this type of mining operations. In the instant case the claimant undertook as one man, accustomed only to supervising, to do the work of two laborers.

[ 196 Pa. Super. Page 583]

"The claimant stated that while doing this work he began to feel sick and finally sat down to rest; that he felt pains from a heart attack and that he finally sought assistance from the chief mechanic, who was outside the mine. The chief mechanic called Dr. Blair and the doctor sent claimant to the hospital, after giving him a hypodermic, where he remained for a period of twenty-three days.

"The Referee found as a fact that the claimant had, through unusual exertion, suffered a heart attack in the course of his employment, and he also concluded that this was a compensable accidental injury under the Act, and awarded the claimant total disability from May 25, 1959, to March 20, 1960, and further granted ...


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