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ZIMMISKI v. LEHIGH VALLEY COAL COMPANY ET AL. (04/18/63)

April 18, 1963

ZIMMISKI
v.
LEHIGH VALLEY COAL COMPANY ET AL., APPELLANTS.



Appeal, No. 23, Feb. T., 1963, from judgment of Court of Common Pleas of Luzerne County, May T., 1962, No. 126, in case of Mrs. Mary Zimmiski v. Lehigh Valley Coal Company et al. Judgment reversed.

COUNSEL

Ralph G. Mastriani, Special Assistant Attorney General, with him Wilson H. Oldhouser, Special Assistant Attorney General, and David Stahl, Attorney General, for Commonwealth, appellant.

John A. Gallagher, with him Herman E. Cardoni, for appellee.

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

Author: Rhodes

[ 200 Pa. Super. Page 526]

OPINION BY RHODES, P.J.

This is an appeal from the action of the Court of Common Pleas of Luzerne County in reversing the decision of the Workmen's Compensation Board and entering judgment in favor of claimant appellee.

In this appeal under the Pennsylvania Occupational Disease Act of June 21, 1939, P.L. 566, as amended, 77 PS ยง 1201 et seq., claimant asserts that her husband's death by suicide was caused by and resulted from anthraco-silicosis. Anthony Zimmiski, claimant's husband, was awarded compensation on January 26, 1960, under the Occupational Disease Act on a finding that his total disability was the result of anthraco-silicosis. He received his first compensation check in March, 1960. The record shows that on April 14, 1960, he committed suicide by shooting himself. The present claim was filed on June 20, 1960, by deceased's widow who alleged that her husband's death was the result of anthraco-silicosis.

The referee found: "... though decedent prior to his act of suicide was moody and depressed ... claimant failed to prove medically that the act of suicide was committed while in a delirium or frenzy so that he was without rational knowledge of the physical consequences of his act as a direct result of anthracosilicosis,

[ 200 Pa. Super. Page 527]

    an occupational disease, with which he was afflicted." The Workmen's Compensation Board reviewed the testimony of the expert witness, Dr. J. Franklin Robinson, and affirmed the referee's finding and conclusion to the effect that claimant failed to prove medically that deceased's death, by suicide, was caused by the occupational disease of anthraco-silicosis; the board affirmed the referee's order of disallowance. On appeal by claimant, the Court of Common Pleas of Luzerne County reviewed at length the expert medical@ testimony of Dr. Robinson, and concluded that such testimony was sufficiently definite to establish a casual connection between the anthraco-silicosis and the death. The court of common pleas further held that the board should have accepted the testimony of the medical expert as verity, and entered judgment in favor of claimant on the death claim.

The judgment of the court below must be reversed, and the order of the board, affirming the referee, reinstated.

Claimant's evidence showed that her husband's mental attitude changed radically after he received his first compensation check in March, 1960. Prior to severance from his employment in 1959, he appeared to be happy, had many friends, and enjoyed hunting, fishing, and baseball. He had previously been a constable; about a week before his suicide, he buried his constable's cap, badge, and blackjack because he feared the authorities would stop his compensation checks. Deceased's son testified his father became extremely depressed following his retirement under total disability, stating that he was no good and life ...


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