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decided: June 8, 1976.


Appeal from the Order of the Workmen's Compensation Appeal Board in case of Bessie Schick v. Newspaper Guild of Greater Philadelphia, No. A-69981.


Sylvan D. Einhorn, with him Winer and Einhorn, for appellant.

R. D. Harburg, with him Swartz, Campbell & Detweiler, and James N. Diefenderfer, for appellees.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer. Judge Kramer did not participate in the decision in this case.

Author: Mencer

[ 25 Pa. Commw. Page 109]

At approximately 10:30 a.m. on Monday, March 16, 1970, Philadelphia police were summoned to the subway concourse at Broad and Race Streets where they found and administered aid to David S. Schick (decedent), an employee of the Newspaper Guild of Greater Philadelphia (Guild). The officers transported Schick to Hahnemann Hospital where he subsequently died from his injuries. The source of those injuries remains unclear to this date.

[ 25 Pa. Commw. Page 110]

Subsequently, Bessie Schick (claimant), as decedent's surviving spouse, filed a fatal claim petition seeking workmen's compensation benefits due to the loss of her husband. This petition was contested by the Guild and its insurer, and, after a considerable number of hearings, benefits were denied by a workmen's compensation referee. The Workmen's Compensation Appeal Board (Board) affirmed the referee's denial of benefits, and claimant therefore appealed to this Court.

Because the Board's decision was rendered subsequent to the 1972 amendments to The Pennsylvania Workmen's Compensation Act (Act)*fn1 and because here the decision below was against the party bearing the burden of proof, our review is limited to a determination of whether the referee's findings of fact are consistent with each other and with the conclusions of law and can be sustained without capriciously disregarding competent evidence. Workmen's Compensation Appeal Board v. Young, 18 Pa. Commonwealth Ct. 515, 336 A.2d 665 (1975). To have constituted a capricious disregard the referee's actions must have been so flagrant as to be repugnant to a man of reasonable intelligence. Workmen's Compensation Appeal Board v. Young, supra.

The primary issue below concerned whether decedent was in fact injured as a result of an accident that occurred during the course of his employment.*fn2 It is clear that claimant could have recovered benefits, even though decedent was not on the employer's premises

[ 25 Pa. Commw. Page 111]

    at the time of the accident, if she had carried the burden of proving that decedent was, at the time of his accident, actually engaged in the employer's business.*fn3 See Workmen's Compensation Appeal Board v. Borough of Plum, supra note 2. We have closely examined the record and find that the referee did not capriciously disregard competent evidence in ruling that claimant had failed to carry her burden in that regard.

The question of whether a decedent was in the course of his employment when fatally injured is a question of law to be determined on the basis of the facts. Bullock v. Building Maintenance, Inc., 6 Pa. Commonwealth Ct. 539, 297 A.2d 520 (1972). As the Superior Court stated in Newman v. Congregation of Mercy and Truth, 196 Pa. Superior Ct. 350, 353, 175 A.2d 160, 161-62 (1961): "As a general rule, an employe who is injured on his way to work, and before reaching the premises of the employer, cannot recover compensation: Giallonardo v. St. Joseph's College, 177 Pa. Superior Ct. 87, 111 A.2d 178. This general rule is subject to an exception if the contract of employment includes transportation to and from work, or if the employe does not have a fixed place of work, or if he is on a special mission for the employer. See Keim v. Burkholder, 182 Pa. Superior Ct. 460, 127 A.2d 752." Claimant has failed to prove that decedent fell

[ 25 Pa. Commw. Page 112]

    within any of these exceptions.*fn4 The referee found that claimant drove decedent as usual to the train station from which he would take his customary train to work in downtown Philadelphia and that he was subsequently found collapsed in the subway concourse. The referee concluded that "decedent was simply on his way to work". While testimony presented by claimant tended to show that decedent was heading directly, without a stopover at his office, to a negotiations session at a building in close proximity to his office (a fact that, if believed, might bring decedent within one of the Newman exceptions), the referee chose to believe otherwise, and we are, on the basis of this record, legally restrained from overturning that finding.

We have carefully considered appellant's other objections and find each of them without merit. Therefore, we issue the following


And Now, this 8th day of June, 1976, the appeal of Bessie Schick from the order of the Workmen's Compensation Appeal Board, dated October 30, 1975, is hereby dismissed.

Judge Kramer did not participate in the decision in this case.


Appeal dismissed.

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