Appeal from judgment of Court of Common Pleas No. 4 of Philadelphia County, June T., 1966, No. 1186, in case of Helen Hamilton, widow of Harry Hamilton, deceased, v. Procon, Inc. et al.
M. H. Goldstein, with him Goldstein, Barkan & Brodie, for appellant.
John R. Warner, with him Marshall, Dennehey & Warner, for appellees.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Dissenting Opinion by Hoffman, J.
[ 211 Pa. Super. Page 447]
Dissenting Opinion by Hoffman, J.:
This is an appeal from a judgment of the Court of Common Pleas of Philadelphia County affirming an crder of the Workmen's Compensation Board. The Board disallowed benefits claimed by the widow of the deceased employee.
The decedent began working on February 5, 1962, for Procon, Inc., and died on February 9, 1962. The lower court quoted an excerpt from the Board's opinion which appears to constitute an accurate representation of the circumstances of this case.
"Hamilton's [the decedent] job site was at the Gulf Refinery located adjacent to Lanier Road beneath the Penrose Avenue Bridge over the Schuylkill River. His job was to construct wood panel forms, assembled by means of angle irons and anchor bolts. During the 5 days work the ground was muddy, and the deceased was required to wear boots, and wade in the deep mud. In addition the laboring employees were not permitted to park their cars on refinery property. This necessitated the parking of the car, in which Hamilton rode to work, about seven tenths of a mile away from the job site and walking that distance over level ground but on the stoney berm of a road. The wind velocity ranged from 6.9 to 18.3 miles per hour and the temperature ranged from 11 degrees to 53 degrees.
"On Friday, February 9, 1962 Hamilton rode to work, as usual, with Francis Roman. The car was parked and Hamilton walked the additional distance to the job site. While changing his clothes in a shack he appeared ill to his fellow employees who called an ambulance. He was dead on arrival at St. Agnes Hospital. The death certificate showed it to result from arteriosclerotic heart disease.
[ 211 Pa. Super. Page 448]
"The claimant, seeking compensation, blames the death on the work conditions, i.e. the exertion required to walk from the parking lot to the job site and the effort required to wade around in the mud while working."
Consequently, the wife-claimant, alleges that decedent's death was caused by unusual strain and, therefore, must be deemed a death resulting from an accident within the meaning of the Act. The Board denied compensation, however, on the ground that the exertion in this case was incidental to the decedent's employment.
Specifically, the Board found that: " Third : On February 9, 1962, while in the course of his employment, Harry Hamilton suffered a heart attack and immediately died.
" Fourth : The death of the deceased was precipitated by the exertion and effort required of him in walking more than a half mile to his work and in working daily in mud at the job site.
" Fifth : The effort exerted by the decedent as set forth above was incidental to this employment and not unusual thereto.
" Sixth : The deceased suffered from pre-existing arteriosclerosis."
On the basis of the Fifth and Sixth findings, the Board denied compensation.
The Workmen's Compensation Act of June 21, 1939, P. L. 520, § 301(a), 77 P.S. § 431, provides in part that: ". . . compensation for personal injury to, or for the death of [an] employe, by an accident, in the course of his employment, shall be paid in all cases by the employer, without regard to negligence, . . .". [Emphasis added]*fn1
[ 211 Pa. Super. Page 449]
Whether a heart attack is an injury by an accident has been the subject of many cases. Yet, despite years of litigation, our Court, as early as 1938, stated that: "In cases of sudden death which involve the question whether there was sufficient competent evidence to establish an accident, those that are compensatory and those that are not compensatory are divided by a line which at times appears indistinct." York v. State Workmen's Insurance Fund, 131 Pa. Superior Ct. 496, 200 A. 230 (1938).
"Obviously if the heart attack is a genuinely work connected injury, to deny compensation benefits would be a gross violation of legislative purpose and of the workmen's rights. It is equally obvious that . . . compensation cannot be paid for every heart attack which happens to make its appearance during working hours. Thus, the task of the courts . . . has been to draw the line between the legitimate application of the Act and the indiscriminate distribution of compensation funds to almost all employed heart victims." Larson, The "Heart Cases" in Workmen's Compensation: An Analysis and Suggested Solution, 65 Mich. L. R. 441 (1967) [cited hereinafter as The Heart Cases].
In order for a heart attack to constitute a compensable injury in our Commonwealth, it must constitute "an accident." "An accident is an occurrence which proceeds from an unknown cause or which is an unusual effect of a known cause and hence unexpected
[ 211 Pa. Super. Page 450]
and unforeseen." Wilcox v. Buckeye Coal Co., 158 Pa. Superior Ct. 264, 266-267, 44 A.2d 603 (1945); see 1A Larson, Workmen's Compensation Law, § 37.00-37.20 (1966) [Cited hereinafter as 1A Larson]. Although laymen do not normally envision heart attacks when speaking of accidents, our Courts, as early as 1924, have construed "injury by an accident" to encompass heart seizures and attacks as compensable. Samoskie v. Philadelphia & Reading Coal & Iron Co., 280 Pa. 203, 124 A. 471 (1924); Durga v. Williams, 89 Pa. Superior Ct. 156 (1926).
It is evident that no heart attack is truly foreseeable, and that no person who reasonably expects a disabling or fatal attack would continue actions that might precipitate it. In addition to being an unexpected result, the heart attack must be caused by an unusual strain or exertion suffered in the course of the employee's employment. In other words, the result must be unexpected and the cause which precipitated the result must be unusual as a matter of law.
In establishing unusual strain, the determinative issues are: "(1) whether or not the task . . . was usual work for the decedent; (2) whether there was unusual strain and exertion; and (3) whether there was a causal connection between such strain and exertion and the decedent's death." Pudlosky v. Follmer Truck Co., 206 Pa. Superior Ct. 450, 214 A.2d 270 (1965). These three requisites for recovery have become deeply imbedded in our decisions and will be referred to hereinafter as "the unusual strain doctrine."
In applying for relief under this doctrine, the hallmark of claimant's case must be that ". . . the work in which the employee was engaged at the time of the occurrence was of a different nature and required a materially greater amount of exertion, risk or exposure than that to which he was ...