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B.G. COON CONSTRUCTION CO. AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD AND RUTH DURBIN (10/21/74)

decided: October 21, 1974.

B.G. COON CONSTRUCTION CO. AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND RUTH DURBIN, WIDOW OF GEORGE W. DURBIN, DECEASED, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Ruth Durbin, Widow of George W. Durbin, Deceased, v. B.G. Coon Construction Company, No. A-67419.

COUNSEL

James P. Harris, Jr., with him Harris, Johnston & Maguire, for appellants.

Nathan Hyman, with him Thomas E. Roberts and James N. Diefenderfer, for appellees.

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

Author: Kramer

[ 15 Pa. Commw. Page 485]

This is an appeal filed by B.G. Coon Construction Company and the Pennsylvania Manufacturers' Association Insurance Company (Coon) from an adjudication of the Workmen's Compensation Appeal Board (Board) dated January 17, 1974, in which the Board affirmed an order of the referee granting benefits to Ruth Durbin. The award was based upon a fatal claim petition arising out of the death of her husband, George Durbin (Durbin).

The facts in this case are not in real dispute. Durbin was employed by Coon for about 15 years as a cost accountant. One of the duties of this 58-year-old employe was to drive from his place of employment to the office of the Department of Highways at Bear Creek (a distance of about 15 miles) to obtain hauling permits. Coon supplied Durbin with a company automobile which, for at least two years prior to March 11, 1971, had been a Chevrolet Nova with an automatic transmission. On March 11, 1971, Durbin left his residence at about 7:00 A.M. and drove to a Chevrolet garage, where he left the Nova for repairs. Shortly thereafter, he was required to obtain hauling permits, and a one-half ton pickup truck with a standard transmission was assigned to him for the trip. He drove to the office of the Department of Highways, as usual, obtained the hauling permits, and was returning to the truck when he collapsed and died. His body was taken to the local hospital, where it arrived at 9:15 A.M., and he was pronounced dead on arrival.

[ 15 Pa. Commw. Page 486]

Durbin had suffered a myocardial infarction in 1959 and although the record shows that he had been treated for high blood pressure and periods of anxiety, he had experienced no other heart attacks until the date of his death. There is no question that he had arteriosclerosis (coronary artery disease). Of particular importance, the record establishes that Durbin also suffered from ulnar neuropathy, which affects the ulnar nerve in the arm and results in muscular atrophy of the affected limb. Durbin had undergone a nerve transplant operation in his right arm in March of 1970, but despite the operation, very little muscular strength remained in his right hand and arm.

The claimant widow presented the testimony of two physicians who stated emphatically that taking into account Durbin's physical condition on the date of his death, the work-related experience of driving the truck with a manual shift, causing Durbin to maneuver his body in a fashion which he had not been required to do in his Nova, was sufficient additional exertion to have caused the fatal heart attack. The record shows that Coon called one physician, who stated in his direct testimony that it was his professional opinion that the unusual driving experience was not causally related to Durbin's death. On cross-examination, however, he admitted that because of the type of heart disease Durbin had, overexertion could have produced death.

[ 15 Pa. Commw. Page 487]

Among the findings made by the referee is paragraph #4 which reads: "4. That on March 11, 1971, while in the course of his employment, the decedent was operating a pick-up truck, which operation of said vehicle, due to the physical limitations of the decedent, caused unusual exertion and stress upon the Claimant." Upon appeal to the Board, the referee's award was affirmed since, in the Board's view, the findings of the referee brought the case under the unusual strain doctrine, as proclaimed by our Supreme Court in Hamilton v. Procon, Page 487} Inc., 434 Pa. 90, 252 A.2d 601 (1969). In its appeal to this Court, Coon raises only one question, and that is whether there is substantial competent evidence in the record to support the referee's finding of unusual stress and exertion.

Our scope of review is limited to ascertaining whether or not constitutional rights were violated, an error of law committed, or, in cases such as this where the party with the burden of proof has won below, whether any necessary finding of fact was not supported by substantial evidence. David v. ...


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