Appeal from order of Court of Common Pleas of Delaware County, No. 1608 of 1966, in case of Rudolph J. Bussone v. Sinclair Refining Company.
Joseph Neff Ewing, Jr., with him Saul, Ewing, Remick & Saul, for appellant.
Bernard M. Berman, with him Siegle, Maher and March, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Wright, J. Dissenting Opinion by Hoffman, J. Montgomery, J., joins in this dissenting opinion.
[ 210 Pa. Super. Page 444]
This is a workmen's compensation case. On August 26, 1964, Rudolph J. Bussone filed a claim petition alleging total disability as the result of a heart attack which occurred on September 6, 1963, during an argument with his supervisor. The employer filed an answer denying (a) that there was an accident and (b) that there was a compensable injury. The Referee awarded compensation. The Board reversed the Referee, and dismissed the claim petition. The Court of Common Pleas of Delaware County entered an order of remand.*fn1 This appeal by the employer followed.
The record discloses a dispute as to whether or not there was any physical contact between the claimant and his supervisor. Claimant testified on direct-examination as follows: "He took me out to the garage and when we got in the garage he closed the door and he started screaming and hollering at me . . . And he turned me around by the arm . . . and I was afraid he was going to strike me". On cross-examination claimant testified as follows: "Q. Where did he grab you on the arm? A. Between the elbow and the shoulder. Q. Tightly? A. Just enough to swing me around. That's
[ 210 Pa. Super. Page 445]
all, just to swing me around. Q. That was the only time he touched you? A. That was the only time he touched me, yes. Q. He didn't threaten to strike you, did he? A. No. Q. After he swung you around then you felt this pain in the chest? A. Not immediately. Q. How long after? A. After he kept hollering for about four or five minutes, kept screaming that he is going to get me, and the way he was throwing his arms around, then I got into pain". The supervisor testified flatly that he had at no time touched the claimant, or threatened to strike him. Claimant made no mention of physical contact in the report prepared for his employer, or in his insurance claim. The Referee did not make a specific finding on the issue of physical contact, neither did the Board. The Board's third finding of fact reads as follows: "The claimant's myocardial infarction was the result of a violent, oral argument between the claimant and his supervisor. It was not the result of any physical trauma that occurred to the claimant on that date". In its opinion the Board reasoned as follows: "Whether or not a physical touching occurred in this case is of no significance and is not a determinative factor . . . It is clear that the cause of the infarction was the emotion raised by the argument, not the physical activity involved, if any".
We are not in accord with the conclusion of the court below that the Board erred as a matter of law. The opinion is based on the theory that the Board actually found that there was physical contact. Reliance was placed upon Hunter v. St. Mary's Natural Gas Co., 122 Pa. Superior Ct. 300, 186 A. 325, for the proposition that an injury due to fright resulting from the application of physical force constitutes a compensable accident. The order of remand was entered because of uncertainty whether the Board's decision was predicated on misconstruction of the law or upon rejection of claimant's medical testimony. It is argued in claimant's
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brief that the order of remand was interlocutory and unappealable. On the contrary, the order below was a clear mandate to the Board to determine the issue of causation in accordance with the Hunter decision. Such an order is legally erroneous, and is appealable: Messikomer v. Baldwin Locomotive Works, 178 Pa. Superior Ct. 537, 115 A.2d 853; Barber v. Flemming-Raugh, Inc., 208 Pa. Superior Ct. 230, 222 A.2d 423.
The applicable legal principles are well settled and were briefly restated in Carey v. Phila. Ship S. & L. Co., 209 Pa. Superior Ct. 306, 228 A.2d 12, as follows: "It was claimant's burden to prove all of the elements necessary to support an award, and it was for the Board to determine from the evidence whether claimant had sustained that burden . . . The finding of the Board that claimant had failed to sustain the burden resting upon him was a pure finding of fact . . . The Board is the final arbiter of the facts, and the evidence must be viewed in the light most favorable to the party having the Board's decision . . . Since the compensation authorities found against the party having the ...