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CAREY v. PHILADELPHIA SHIP SUPPLY AND LUMBER COMPANY ET AL. (03/23/67)

decided: March 23, 1967.

CAREY
v.
PHILADELPHIA SHIP SUPPLY AND LUMBER COMPANY ET AL., APPELLANTS



Appeal from order of Court of Common Pleas No. 2 (heard in Court of Common Pleas No. 1) of Philadelphia County, June T., 1966, No. 1862, in case of Henry L. Carey v. Philadelphia Ship Supply and Lumber Company et al.

COUNSEL

Frederick L. Fuges, with him Lewis Becker, William M. Marutani, and MacCoy, Evans & Lewis, for appellants.

William Miller, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Wright, J.

Author: Wright

[ 209 Pa. Super. Page 307]

This is a workmen's compensation case. Henry L. Carey filed a claim petition alleging that he had sustained a myocardial infarction as the result of an accident while in the course of his employment by the Philadelphia Ship Supply and Lumber Company, 50 East Laurel Street, Philadelphia. The employer denied that an accident had occurred. The Referee dismissed the claim petition. The Board affirmed the decision of the Referee. The Court of Common Pleas reversed the Board and remanded the case for the entry of an award in favor of the claimant. This appeal followed. The factual situation appears in the following excerpt from the Board's opinion:

"On January 14, 1964 the claimant was employed by the defendant as a truck driver. On that date he reported to work at his usual time, opened the offices and then proceeded to carry out his usual duties which were warming up the trucks and preparing the equipment

[ 209 Pa. Super. Page 308]

    for use during the day. There had been a heavy snow the preceding day and when the defendant attempted to remove a heister [fork lift] from its garage, the heister would not move in the snow. The claimant carried four or five buckets of cinders from another garage 20 feet away and as he moved the heister a short distance he would put cinders under the wheels in order to give traction to the wheels. In this way he moved the vehicle. Shortly after freeing the heister from its snowbound position, the claimant felt a crushing pain in his left arm and chest. At noontime he was taken to his family physician and given medication. He returned to work.

"The next morning the claimant suffered the pains again and was taken to the Episcopal Hospital. He remained there until his discharge on January 18, 1964, a Saturday. The following Monday he returned to work and continued his employment with the defendant until April 8, 1964. At the direction of Dr. Theodore Lundy, the claimant stopped work and was admitted to the Hahnemann Hospital on April 14, 1964. He remained hospitalized until May 9, 1964 and has not worked since April 9, 1964".

Claimant's case is based on the contention that he had engaged in unusual exertion. It is argued in his brief "that the total pattern of overexertion in this case was an accident". However, the Referee found as a fact from the evidence "that the claimant did not sustain an accidental injury". Our review of the record indicates that this conclusion was fully warranted. Not only did the Board affirm the Referee's finding, but also it made the following additional finding: "The work of the claimant which caused the myocardial infarction was not of a materially different nature and did not require a materially greater effort to be unusual to his occupation". The court below reasoned that the question for judicial review was whether claimant had

[ 209 Pa. Super. Page 309]

    met the burden of proving unusual exertion. To the contrary, the determination of that issue was for the ...


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