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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND LUCILLE JORDAN v. BOROUGH FERNDALE (07/15/75)

decided: July 15, 1975.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND LUCILLE JORDAN, WIDOW OF RUSSELL E. JORDAN,
v.
BOROUGH OF FERNDALE, APPELLANT



Appeals from the Orders of the Workmen's Compensation Appeal Board in case of Lucille Jordan, wife of Russell E. v. Borough of Ferndale, No. A-68093; and Russell E. Jordan v. Borough of Ferndale, No. A-68096.

COUNSEL

Robert G. Rose, with him Spence, Custer, Saylor, Wolfe & Rose, for appellant.

Patrick A. Gleason, with him Gleason, DiFrancesco, Shahade & Markovitz, and James N. Diefenderfer, for appellees.

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

Author: Kramer

[ 20 Pa. Commw. Page 271]

This is an appeal by the Borough of Ferndale (Ferndale) from two orders of the Workmen's Compensation Appeal Board (Board), both dated December 14, 1974. These orders affirmed a referee's awards of compensation for disability and death benefits to Lucille Jordan (Jordan) widow of Russell E. Jordan.

The alleged accident occurred on August 26, 1965, when Russell Jordan, acting in his joint capacity as a volunteer fireman and as Ferndale's Chief of Police, answered a fire call near his home. While alighting from Ferndale's fire truck, Chief Jordan felt a "click" in his neck, which was followed immediately by excruciating pain in his head and neck. After returning to his home, Chief Jordan experienced such severe pain that he required hospitalization that same evening; he was never able to fully resume his duties.

While Chief Jordan was hospitalized, his doctors discovered a malignancy which, although originating in his kidney, had metastasized and reached the first cervical vertebrae, causing severe pain. Chief Jordan succummed to cancer on December 10, 1966, having filed a claim for disability benefits. His widow subsequently filed a fatal claim petition.

The principal factual issue before the referee involved the causal relationship, if any, between Chief Jordan's act in alighting from the fire truck and his subsequent disability and death. Five physicians testified on this issue, four of whom were offered by the defendant Ferndale. All four of Ferndale's medical witnesses stated unequivocally that in their considered medical judgment Chief Jordan's disability and death were due to the carcinoma which was neither caused nor aggravated by his actions on the day of the fire.

[ 20 Pa. Commw. Page 272]

The referee accepted the opinion of these experts and found that "[t]he fact that [Chief Jordan] experienced pain, resulting in the discovery of his previous existing underlying and undiagnosed carcinoma of the neck was merely coincidental with, and not caused by, the incidents of August 26, 1965." Accordingly, the referee made the following conclusions of law on the disability claim:

"1. Claimant was not involved in an industrial accident.

"2. Claimant's disability was not caused or aggravated by the incidents ...


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