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SARAH E. PALMER v. CITY PITTSBURGH AND WORKMEN'S COMPENSATION APPEAL BOARD (07/24/73)

decided: July 24, 1973.

SARAH E. PALMER, WIDOW OF ROY I. PALMER, DECEASED, APPELLANT,
v.
CITY OF PITTSBURGH AND WORKMEN'S COMPENSATION APPEAL BOARD



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Sarah E. Palmer, Widow of Roy I. Palmer, deceased, v. City of Pittsburgh, No. A-64953.

COUNSEL

Leonard A. Costa, Jr., for appellant.

Bernice Hummert, Assistant City Solicitor, with her Ralph Lynch, City Solicitor, for appellee.

Judges Kramer, Mencer and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 9 Pa. Commw. Page 527]

In the early morning hours of June 28, 1964, and before the end of his duty period, Roy Palmer, a fireman for the City of Pittsburgh (City), was discovered lying on the sidewalk across the street from the firehouse

[ 9 Pa. Commw. Page 528]

    to which he was assigned. He was taken to the hospital and he died there on June 29, 1964, having suffered a massive intracranial subdural hemorrhage due to a fracture of the skull, a fracture of the eleventh thoracic vertebra, a crushed spinal cord and multiple fractures of the ribs. Palmer had come on duty in the early evening of June 27 and was to be on duty throughout that evening and during the night until early morning on June 28. There was testimony that he and other firemen frequently sat on the porch or steps of the house across the street when they were on duty, and that he had so visited those premises at least once on the night in question. There was nothing in the record to indicate, however, when or if he had returned to the firehouse after the last such visit.

Soon after Palmer's death, his widow, Sarah E. Palmer (claimant), consulted Captain George Fyfe, the Captain in charge of the firehouse where Palmer was stationed, as to her compensation rights. Captain Fyfe informed her that he did not believe she had a claim, but that he would check with his superior. Thereafter Captain Fyfe arranged for her to talk with Chief Stephen Adley of the City's Bureau of Fire, who likewise told her that he did not believe she was entitled to any compensation. She also spoke to an employee of the City's Law Offices, whose duties included the processing of workmen's compensation claims, and was again informed that she was not entitled to any benefits. She took no further action then until November 20, 1970, when she filed a Fatal Claim Petition, seeking benefits pursuant to The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, 77 P.S. ยง 1 et seq.

Following a hearing, the referee ruled in favor of the claimant and awarded her benefits. On appeal, the Workmen's Compensation Appeal Board (Board), which did not take any additional evidence, sustained

[ 9 Pa. Commw. Page 529]

    the appeal and denied compensation. In its Order, dated September 28, 1972, the Board held not only that Palmer was not within the scope of his employment when his injuries occurred but that, in any case, the Claim Petition was barred because it was not filed within sixteen months of Palmer's death.

Our scope of review in workmen's compensation cases is limited to a determination as to whether or not constitutional rights were violated, an error of law was committed, or any necessary finding of fact was unsupported by substantial evidence. Arnold Coal & Supply Co., Inc. v. Markle, 8 Pa. Commonwealth Ct. 107, 300 A.2d 916 (1973); Bayuk Cigar Company v. Hawn, 8 Pa. Commonwealth Ct. 45, 300 A.2d 837 (1973). And where, as here, the Board has taken no additional evidence, we must rely on the facts as found by the referee if they are ...


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