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DRACO DEVELOPMENT CORP. AND PENNSYLVANIA NATIONAL MUTUAL CASUALTY CO. v. WORKMEN'S COMPENSATION APPEAL BOARD AND ELIZABETH A. FLORIANI (11/26/73)

decided: November 26, 1973.

DRACO DEVELOPMENT CORP. AND PENNSYLVANIA NATIONAL MUTUAL CASUALTY CO., INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND ELIZABETH A. FLORIANI, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Elizabeth A. Floriani, widow of Frank D. Floriani v. Draco Development Corporation and Pennsylvania National Mutual Casualty Co., Insurance Carrier, No. A-66301.

COUNSEL

Richard A. Bausher, with him Stevens & Lee, for appellants.

Clifford B. LePage, Jr., with him Austin, Speicher, Boland, Connor & Giorgi, for appellees.

Judges Kramer, Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 11 Pa. Commw. Page 42]

This is an appeal by Draco Development Corporation (Draco) from an order of the Workmen's Compensation Appeal Board (Board), dated March 15, 1973, affirming the Referee's award of compensation to Elizabeth A. Floriani on her fatal claim petition.

The petition asserts that her late husband, Frank D. Floriani (Floriani), died on April 15, 1971, as a result of an accident which occurred on April 13, 1971. On the date of the accident Floriani was working as a

[ 11 Pa. Commw. Page 43]

    construction laborer for Draco. Floriani lost control of a motorized wheel barrow, or cement buggy, which he was operating and was knocked off a ramp approximately 12 to 14 inches above the floor. He fell straddling an opening approximately three feet by four feet. He was helped to his feet by his fellow workers and continued to work throughout the remainder of the afternoon. Although he experienced chest pains throughout the night of April 13, 1971, Floriani went to work the next morning. He was unable to continue working, and at about 10:00 o'clock that morning, he went to Community General Hospital where he was examined by Dr. Harold Farber. Upon completion of the examination by Dr. Farber, Floriani returned home. Later on that afternoon, he collapsed and was rushed by ambulance to Community General Hospital where he was reexamined by Dr. Farber. At 11:45 p.m., he was transferred to the coronary care unit of Reading Hospital and was examined by Dr. Gruber. He subsequently died at 1:45 a.m. on April 15, 1971. The cause of death has been established as a dissecting aneurysm of the aorta.

On December 1, 1971, a hearing was held on the petition by Referee Francis R. Tworzydlo. The testimony of Mrs. Floriani, two co-workers, and Dr. Farber was presented at this hearing. At a later hearing on May 24, 1972, conducted by Referee Frank M. Perna, the testimony of Dr. John Gruber was presented in behalf of Draco. On August 29, 1971, Referee Perna issued his findings of fact, conclusions of law, and award in favor of Mrs. Floriani's petition. Draco appealed to the Board, which affirmed the Referee; hence this appeal.

Draco poses two questions on appeal. First, Draco alleges that the Board's findings and conclusions cannot be "sustained without a capricious disregard of the competent evidence." Second, Draco contends that

[ 11 Pa. Commw. Page 44]

    it would be improper for Referee Perna to decide the case at his level since he did not personally hear the ...


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