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PHYLLIS J. MUSER v. I.B.M. CORPORATION (04/04/74)

decided: April 4, 1974.

PHYLLIS J. MUSER, WIDOW OF HOWARD MUSER, APPELLANT,
v.
I.B.M. CORPORATION, LIBERTY MUTUAL INSURANCE COMPANY AND WORKMEN'S COMPENSATION APPEAL BOARD, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Phyllis J. Muser, Widow of Howard Muser v. I.B.M. Corporation, No. A-66108.

COUNSEL

George A. D'Angelo, with him Truscott & Erisman, for appellant.

Lowell A. Reed, Jr., with him Rawle & Henderson, for appellee.

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

Author: Kramer

[ 13 Pa. Commw. Page 13]

This is an appeal filed by Phyllis J. Muser (Muser) from an order of the Workmen's Compensation Appeal Board (Board) dated February 22, 1973, affirming the referee's adjudication which denied workmen's compensation benefits to Muser under a fatal claim petition based upon her husband's death.

Howard Bruce Muser (decedent) was a customer's engineer for the I.B.M. Corporation and was 37 years of age when on January 29, 1964, he was stricken by a heart attack while making a service call for IBM. The decedent was specially trained to repair very technical

[ 13 Pa. Commw. Page 14]

    and complex machinery such as was installed by his employer at the United States Marine Corps Base in Philadelphia. This machinery, which was a vital and integral part of the defense system of the United States, malfunctioned on January 29, 1964. The decedent was called upon to repair the machinery under what can be considered, from its description in the record, as an emergency situation. The decedent parked his automobile one and a half blocks from the location of the machinery and carried his 40-pound bag of tools from his automobile to the machinery. Before he could commence his work, he collapsed and was taken to the hospital where he died on the same day.

On June 2, 1965, Muser filed a fatal claim petition alleging that her husband had suffered a work-related accident and that his death was due to an acute myocardial infarction and thrombosis "caused by unusual strain and stress." Hearings were held at which expert medical testimony was received from both Muser and IBM. Based on this record, the referee found that decedent's fatal heart attack was not work-related and that it occurred during an assignment to his usual duties which he was performing in his usual manner. The referee also found that the autopsy report revealed evidence of prior arteriosclerosis. The referee concluded that this decedent did not have an accident for which workmen's compensation benefits could be paid to Muser.

Although Muser raises a question in her brief concerning the fact that the referee who filed the adjudication in this case was not the referee who heard the testimony, that issue was not specifically presented to this Court nor was it raised by Muser in any of the proceedings below. Therefore, it will not be discussed in this opinion. See United States Steel Corporation v. Simon, 9 Pa. Commonwealth Ct. 281, 305 A.2d 913

[ 13 Pa. Commw. Page 15]

(1973); Wilder v. Jones & Laughlin Steel Corp., 8 Pa. Commonwealth Ct. 505, ...


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