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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND MARGARET H. VAIN v. PENN BROOK MILK COMPANY AND FEDERAL INSURANCE COMPANY (12/16/75)

decided: December 16, 1975.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND MARGARET H. VAIN
v.
PENN BROOK MILK COMPANY AND FEDERAL INSURANCE COMPANY, INSURANCE CARRIER, APPELLANTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Margaret H. Vain v. Penn Brook Milk Company, No. A-68805.

COUNSEL

Lowell A. Reed, Jr., with him Rawle & Henderson, and, of counsel, William G. Adamson, for appellants.

Thomas F. McDevitt, with him James N. Diefenderfer, for appellees.

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

Author: Mencer

[ 22 Pa. Commw. Page 372]

This is an appeal by Penn Brook Milk Company and Federal Insurance Company (appellants) from an order of the Workmen's Compensation Appeal Board (Board) sustaining a referee's grant of workmen's compensation benefits to Margaret H. Vain (claimant). Claimant is the surviving dependent spouse of Robert J. Vain (Vain) who died during the course of his employment as a milk truck driver and dairy salesman.

The facts immediately surrounding Vain's death, the proof of which here is necessarily dependent on conflicting circumstantial evidence, presented a very difficult setting for the referee to fulfil the fact-finding role that is imposed on referees by the Pennsylvania Workmen's Compensation Act.*fn1 After the referee's due deliberations, he set forth the following two findings of fact crucial to his conclusion of a compensable "accident":

[ 22 Pa. Commw. Page 373]

"2. That on January 29, 1968 the decedent, while making a delivery on his route, on the Northwest Corner of Greenway Ave. and Third Ave., Darby, Pa. slipped and fell and struck his head on the street.

"3. That as a result of the fall claimant [sic] suffered a bruise on the left side of his forehead and abrasions to the back of the scalp, all of which resulted in his accidental and immediate death."

The Board, without taking any additional testimony, affirmed the referee while making the following modifications to his findings:

"We shall affirm the determination of the referee by adding ...


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