Appeal from the Order of the Workmen's Compensation Appeal Board in case of Delores Jean Rabenstein, Widow of Earl David Rabenstein, Claimant, v. State Workmen's Insurance Fund and Quaker City Tree Surgeons, Inc., No. 323 January Term, 1971.
Edward F. Silva, with him Jack E. Feinberg and R. Merle Heffner, for appellant.
Milton D. Soiferman, Special Assistant Attorney General, for appellees.
Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.
[ 15 Pa. Commw. Page 162]
The narrow issue in this workmen's compensation appeal is whether or not Earl David Rabenstein (Rabenstein) was "in the course of his employment" under Section 301(c) of The Pennsylvania Workmen's Compensation Act*fn1 when he was fatally injured in an automobile accident.
On the morning of May 7, 1965, Rabenstein reported for work at 7 a.m. Since it was raining, his supervisor stated that there would be no work that day and that the workers would be paid one hour "showup" pay. Less than one hour after leaving the job site, Rabenstein met his death from injuries sustained in the automobile accident.
Rabenstein's widow, Delores Jean Rabenstein, initiated the present litigation by filing a fatal claim petition on January 22, 1966. Her petition was denied by a referee, and this denial was in turn affirmed by the Workmen's Compensation Appeal Board (Board) and the Court of Common Pleas of Philadelphia County. Mrs. Rabenstein now appeals to this Court.
[ 15 Pa. Commw. Page 163]
Our scope of review in workmen's compensation cases is limited to a determination of whether constitutional rights were violated, an error of law was committed, or any necessary finding of fact was unsupported by substantial evidence. Page's Department Store v. Workmen's Compensation Appeal Board, 11 Pa. Commonwealth Ct. 126, 309 A.2d 169 (1973). And where, as here, the Board has affirmed the referee and has found against the party having the burden of proof, review by this Court is to determine whether the Board's findings are consistent with each other and with its conclusions of law and its order and can be sustained without a capricious disregard of competent evidence.*fn2 Wilkes-Barre Iron & Wire Works, Inc. v. Workmen's Compensation Appeal Board, 9 Pa. Commonwealth Ct. 612, 309 A.2d 172 (1973).
Mrs. Rabenstein first claims that all three lower tribunals erred as a matter of law in concluding that decedent was not in the course of his employment at the time of his accident. We do not agree.
The determination of whether an employe is in the course of his employment at the time of an accident is one of law, based upon the findings of fact. Greene v. Workmen's Compensation Appeal Board, 12 Pa. Commonwealth Ct. 423, 317 A.2d 358 (1974). This question of law involves an interpretation of Section 301(c) of The Pennsylvania Workmen's Compensation Act which read in 1965 in pertinent part: "The term 'injury by an accident in the course of his employment,' as used in this article [77 P.S. § 411 et seq.], shall not include an injury ...