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COLE STEEL EQUIPMENT CORPORATION AND EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY WISCONSIN v. WORKMEN'S COMPENSATION APPEAL BOARD AND GLORIA E. HERNANDEZ (07/24/74)

decided: July 24, 1974.

COLE STEEL EQUIPMENT CORPORATION AND EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND GLORIA E. HERNANDEZ, WIDOW OF JOSE HERNANDEZ, DECEASED, APPELLEES



Appeal from the Order of the Workmen's Compensation (Appeal) Board in case of Gloria E. Hernandez, Widow of Jose Hernandez, deceased, v. Cole Steel Equipment Company, No. A-65186.

COUNSEL

James K. Martin, for appellants.

Hugh D. Manifold, with him James N. Diefenderfer, for appellees.

Judges Crumlish, Jr., Wilkinson, Jr. and Rogers, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. Judge Crumlish dissents.

Author: Blatt

[ 14 Pa. Commw. Page 455]

Jose Hernandez (decedent) died on January 20, 1971, as the result of a ruptured cerebral aneurysm. His wife, Gloria E. Hernandez (claimant) filed a fatal claim petition seeking benefits pursuant to The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 1 et seq. Following a hearing, the referee found that the decedent had suffered an accident in the course of his employment with the Cole Steel Equipment Corporation (Cole), but that there was no causal connection between

[ 14 Pa. Commw. Page 456]

    that accident and the decedent's death. In a decision dated December 7, 1972, the Workmen's Compensation Appeal Board, without hearing any additional evidence, made new findings of fact, reversed the referee, and awarded benefits to the claimant. The Board based its holding on its preference for the testimony of claimant's, rather than Cole's, medical witnesses and on the belief that the referee erred in his statement made during the hearing, but not in the adjudication, that there was probably insufficient evidence to establish that the decedent suffered a blow to his head. Cole has appealed to this Court.

On appeal to this Court in workmen's compensation cases, where the decision of the fact finder was adverse to the party bearing the burden of proof (here the claimant), our scope of review is limited to a determination of whether or not constitutional rights were violated, an error of law was committed, or there has been a capricious disregard of competent evidence. And where, as here, the Board has taken no additional evidence, we must rely on the facts as found by the referee if he has not capriciously disregarded competent evidence in arriving at such facts. It is the province of the referee to consider the credibility of the witnesses. Canterna v. United States Steel and Workmen's Compensation Appeal Board, 12 Pa. Commonwealth Ct. 579, 317 A.2d 355 (1974).

The testimony herein indicates that the decedent was a relatively healthy man of 39 years of age on January 5, 1971, the date of the alleged accident. Jay Tyson, a fellow employee of the decedent, testified that while he was working he heard, but did not see, a piece of aluminum tubing fall to the floor. The tubing was six feet long and one and one half inches in diameter, weighed about six pounds and when last seen by Mr. Tyson, it was leaning against a pole. When Mr. Tyson turned to see what had happened, he noticed the decedent

[ 14 Pa. Commw. Page 457]

    standing on a conveyer near where the tube had fallen and holding his left forehead. Mr. Tyson noted a small cut of about one fourth of an inch in length above the decedent's left eyebrow, and, although it was not bleeding, Mr. Tyson advised the claimant to go to the company dispensary for treatment. The claimant did so, his cut was cleaned and bandaged, and he returned to work.

The claimant testified that, when the decedent arrived home that night, he told her that he had been struck on the head by a piece of pipe at work and that he had a slight headache. He worked the rest of the week but continually complained to the claimant of worsening headaches, and he finally went to see his family physician, Dr. E. Rivera, on January 9, 1971. Upon returning from his visit to Dr. Rivera, he was seized with pain and chills and became unresponsive to the claimant's questioning. He was ...


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