Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of In The Matter of Katie Bullock, Widow, William Bullock, Jr., son of William Bullock, Sr. v. Building Maintenance, Inc. and Travelers Insurance Company, Insurance Carrier, No. 4331 April Term, 1971.
Joseph A. C. Girone, for appellants.
Joseph J. Murphy, with him Harris I. Weisbord, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.
This is an appeal from an order of the Court of Common Pleas of Philadelphia County affirming the decision of the Workmen's Compensation Board (Board) and dismissing the appeal of Katie Bullock (Bullock), widow of William Bullock, Sr., and on behalf of her minor son. The Board had set aside certain of the Referee's findings of fact and conclusions of the law, whereby the Board denied the claim of Bullock for workmen's compensation benefits claimed to be due as a result of her husband's death.
Pertinent facts found by the Board are that the deceased husband of Bullock was an employee of Building Maintenance, Inc. (employer), an organization which provided janitorial services for the Horn & Hardart Baking Company at its plant in Philadelphia. Decedent was one of a number of the employees who performed janitorial services, such as the cleaning of refrigerators. The decedent was found unconscious with a head injury on the floor of the supply room at the plant. He was rushed to the hospital where several hours later he was pronounced dead as a result of a blunt impact trauma. The record is quite clear that at the time of decedent's accident he was not present on the premises for a purpose within his usual scope of employment. September 17, 1966, the date of the accident, was the decedent's "day off." It is also clear from the record that the decedent was on the premises for the purpose of obtaining union referral slips from his fellow workers, and that he intended to file these slips at the local labor union office. It was stipulated that the decedent was not an official union shop steward. The Board found that the decedent "had assumed personally the responsibility for clearing up a situation that was causing difficulty with the union employees," and that decedent's appearance at the plant site "was for the purpose of straightening out the relationship between the employees and the union and did not significantly involve the interests of the" employer. The Board concluded that the decedent was not acting in the furtherance of the interest of his employer and therefore denied the widow's claim. In doing so, the Board set aside the Referee's finding that the decedent appeared at the plant site at the direction of the employer's supervisor, and the Referee's conclusion that decedent was injured in the course of his employment.
The sole question presented by Bullock to this Court is whether the decedent at the time of his injury, which
resulted in his death, was an employee acting in the course of his employment.
We must first point out, as we said in the case of Scott & Statesman Ins. Co. v. DeAngelis, 3 Pa. Commonwealth Ct. 168, 281 A.2d 172 (1971), and as Section 423 of the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 854 states, the Referee is the Board's agent, and the Board has the power to disregard the findings of fact made by the Referee. The Board may substitute its own findings for those of the Referee so long as it does not capriciously disregard the evidence in making its substituted findings of fact and conclusions of law.
Numerous recent cases reiterate that where the decision of the Board was against the appellant-claimant, our scope of review is whether the Board's findings of fact are consistent with each other and with its conclusions of law, and can be sustained without a capricious disregard of the evidence. See Gayer v. Quaker Hair Goods Co., 5 Pa. Commonwealth Ct. 133, 289 A.2d 763 (1972); Pellegrino v. Baldwin-Lima-Hamilton Corp., 5 Pa. Commonwealth Ct. 150, 289 A.2d 531 (1972); Stump v. Follmer Trucking Co., 4 Pa. Commonwealth Ct. 110, 286 A.2d 1 (1972); Segzda v. Jones & Laughlin Steel Corp., 4 Pa. Commonwealth Ct. 498, 287 A.2d 708 (1972). These cases also hold that it is not within the province of the reviewing court to weigh conflicting testimony or to decide what inferences should ...