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DOROTHY M. WALKER v. WORKMEN'S COMPENSATION APPEAL BOARD (03/26/75)

decided: March 26, 1975.

DOROTHY M. WALKER, WIDOW OF HOWARD N. WALKER, DECEASED, APPELLANT,
v.
WORKMEN'S COMPENSATION APPEAL BOARD, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION AND STATE WORKMEN'S INSURANCE FUND, INSURANCE CARRIER, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Dorothy M. Walker, widow of Howard N. Walker, deceased, v. Department of Transportation, Commonwealth of Pennsylvania, No. A-66545. Transferred April 27, 1973, from the Court of Common Pleas of Greene County to the Commonwealth Court of Pennsylvania.

COUNSEL

Ewing B. Pollock, with him Pollock, Pollock & Thomas, for appellant.

John E. O'Connor, with him James N. Diefenderfer, for appellees.

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

Author: Blatt

[ 18 Pa. Commw. Page 170]

This is an appeal from a decision of the Workmen's Compensation Appeal Board (board) reversing a referee and denying benefits to Dorothy M. Walker (claimant).

On November 18, 1971 Howard N. Walker (decedent), the claimant's husband, was employed by the Pennsylvania Department of Highways*fn1 as a maintenance foreman whose primary duties were to place the other employes at work and to keep their time sheets. On the morning of that date he reported for work at a tool shed and then proceeded to Legislative Route 30031 in Greene County where his maintenance crew of three men was erecting a snow fence. Shortly after arriving there, the decedent decided that more fencing would be needed and so he drove alone in a pick-up truck to the site where it was being stored, about two miles away. When he returned about twenty minutes later with the additional fencing, he complained about pains in his stomach. One of the crew members drove him home and, about a half-hour later, when the claimant returned home from an errand, she found her husband dead. The cause of death was arteriosclerotic heart disease and, as his doctor testified, the decedent had had a weak heart condition since 1966 when he suffered a coronary occlusion. His widow filed a fatal claim petition and after a hearing, a referee awarded benefits. The Board reversed and this appeal followed.

Our scope of review is, of course, limited to a determination of whether or not constitutional rights were violated, an error of law was committed or necessary findings of fact were unsupported by substantial competent evidence. Anderson v. Independent Pier Co., 13 Pa. Commonwealth Ct. 268, 320 A.2d 925 (1974). Where the board has taken no additional evidence, the ultimate fact finder is the referee who must determine questions of

[ 18 Pa. Commw. Page 171]

    credibility and evidentiary weight so that the board and the reviewing court must rely on facts found by the referee so long as they are supported by sufficient competent evidence. See Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973). The referee here found that Mr. Walker died as a result of an accident while in the course of employment and, after reviewing the record, we believe that the medical testimony, when read as a whole, establishes the necessary causal connection between Mr. Walker's work activities on November 18, 1971 and his subsequent heart attack. The board was, therefore, in error when, without taking additional evidence, it submitted its own finding that the "(d)ecedents death was not induced by over-exertion at work."

The claimant must also, of course, establish that her husband suffered a compensable accident within the meaning of the Workmen's Compensation Act*fn2 and for that purpose she relies on the unusual strain doctrine. A crucial factor in the application of that doctrine, however, involves the question of whether or not the act causing the injury was unusual and untoward in the course of the employment in which the employee was engaged. See Bayuk Cigar Company v. Hawn, 8 Pa. Commonwealth Ct. 45, 300 A.2d 837 (1973). The doctrine must be applied according to the work history of the individual involved and not according to the work pattern of his profession in general. Hamilton v. Procon, Inc., 434 Pa. 90, 252 A.2d 601 (1969).

An accident may not be inferred from the fact that an employee sustains a heart attack as the result of exertion necessary for the performance of his usual duties. Billick v. Republic Steel Corporation, 214 Pa. Superior Ct. 267, 257 A.2d 589 (1969). Moreover, the ...


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