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WESTINGHOUSE ELECTRIC CORPORATION v. WORKMEN'S COMPENSATION APPEAL BOARD AND CATHERINE ETZEL (01/04/74)

decided: January 4, 1974.

WESTINGHOUSE ELECTRIC CORPORATION, APPELLANT,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND CATHERINE ETZEL, WIDOW OF ELMER ETZEL, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Catherine Etzel, Widow of Elmer Etzel, deceased, v. Westinghouse Electric Corporation, No. A-66531.

COUNSEL

Richard C. Witt, with him Thomas Lewis Jones, Samuel P. Gerace, Robert C. Jones and Jones, Gregg, Creehan and Gerace, for appellant.

Herbert B. Lebovitz, with him James N. Diefenderfer and Lebovitz & Lebovitz, for appellees.

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

Author: Wilkinson

[ 11 Pa. Commw. Page 369]

This is an appeal from the decision of the Workmen's Compensation Appeal Board which affirmed the award

[ 11 Pa. Commw. Page 370]

    of the referee to the claimant-appellee for the death of her husband. The decedent died at approximately 3:15 p.m. on the afternoon of July 12, 1967, having worked at his usual position as a grinder from 7:30 a.m. that day. His shift would have been completed at 3:30 p.m. He had worked for this employer, according to the testimony, for 35 or 36 years. The decedent "dropped dead" on the job at the end of the day's work. The fundamental factual question determined by the referee was that the death was the result of an accident. This finding was affirmed by the Workmen's Compensation Appeal Board which sustained the award. We must affirm.

The Board, in a well-reasoned opinion by Chairman Culbertson, concluded that decedent-husband died of a heart attack brought on by heat stroke or heat prostration. It found that this was an accident under the unusual pathological result rule. Appellant contests the decision of the referee and the Board on the ground that the evidence will not support this finding. Specifically, the appellant asserts that the claimant-appellee's expert witness, who testified that the death was the result of heat stroke or heat prostration, had never seen the deceased alive or dead, did not testify based on a properly framed hypothetical question, and relied upon assumed facts not in evidence.

To sustain the Board, we will take the facts relied upon by the expert witness and by the Board which appellant asserts are not in the record, and will point out where they appear.

Appellant asserts that the only evidence of temperature was its Exhibit "C," being the weather bureau's report for Pittsburgh for that day, showing the highest outside temperature to be 88 degrees. The claimant-widow testified it was a hot day. John Kurtz said it was hot, 80 degrees or 90 degrees. Joseph Palochko said it was "hot and sort of humid." Margaruite Makatura

[ 11 Pa. Commw. Page 371]

    testified it was in the nineties that day. She said she knew, for she has emphysema and listened to the radio for the temperature to determine whether she could leave her air-conditioned home. Dr. Gates, employer-appellant's expert witness, testified: "It was a warm day. I know that. It was hot. . . . I'd say the temperature that day was in the ...


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