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DOROTHY ELKO v. COMMONWEALTH PENNSYLVANIA (12/21/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 21, 1977.

DOROTHY ELKO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, ATLANTIC RICHFIELD COMPANY, INC. AND/OR CONTINENTAL INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Dorothy Elko v. Atlantic Richfield Co., Inc., No. A-71386.

COUNSEL

Joseph P. Briglia, for petitioner.

Roger B. Wood, with him David L. Pennington; Harvey, Pennington, Herting & Renneisen, Ltd., and James N. Diefenderfer, for respondents.

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

Author: Crumlish

[ 33 Pa. Commw. Page 106]

Dorothy Elko (Claimant) appeals a decision of the Workmen's Compensation Appeal Board (Board) which reversed an award of benefits made by the referee pursuant to a fatal claim petition.

Claimant's husband, Paul Elko (Decedent), was last employed by the Atlantic-Richfield Company (Employer) as a "general job mechanic."*fn1 The transition of events as they occurred on October 16, 1970, Decedent's last day of employment, is in dispute. It is Claimant's position that Decedent was engaged in the lifting of a "heavy plank,"*fn2 while at work, causing a dissecting aortic aneurysm resulting in his death. Employer's foreman, on the other hand, testified that Decedent was assisting five or six men in removing a "grating" in the compressor room weighing between 150 and 175 pounds in order to have access to the compressor bottle beneath it. Noticing that Decedent "looked a little gray," the foreman instructed Decedent to take a break. According to the foreman's testimony, a few minutes later another employee "came tearing to me riding a bicycle" and informed him that Decedent looked seriously ill. The foreman then signaled for an ambulance which took Decedent to Methodist

[ 33 Pa. Commw. Page 107]

Hospital. Subsequently, he was moved to Thomas Jefferson University Hospital where he died on October 17, 1970, following surgery. Over Employer's objection, the referee admitted a statement made by Decedent to Claimant after surgery and shortly before death that "[i]t was heavy, so heavy."*fn3 Without ruling on the admissibility of this statement, for reasons hereinafter mentioned, we find this statement alone, or in conjunction with other testimony, insufficient to meet Claimant's burden of proving an "accident."

Since this injury occurred in October of 1970, the 1972 Amendments to The Pennsylvania Workmen's Compensation Act*fn4 (Act), which no longer require a claimant to prove an "accident" for an injury to be compensable,*fn5 are not here relevant. See Kunigonis v. H.P. Foley, Inc., 28 Pa. Commonwealth Ct. 73, 367 A.2d 763 (1977). Rather, we are once again confronted with a determination of whether a compensable "accident"*fn6 has occurred.

[ 33 Pa. Commw. Page 108]

It is Claimant's contention that Decedent's death was as the result of an injury within the unusual strain doctrine and therefore compensable as an "accident" under the Act. As we said in B.G. Coon Construction Co. v. Workmen's Compensation Appeal Board, 15 Pa. Commonwealth Ct. 484, 487, 326 A.2d 656, 658 (1974):

[U]nder the unusual strain doctrine there can be no recovery unless a claimant proves that the death or injury resulted from overexertion or unusual strain encountered in the course of his employment. This doctrine is to be applied in light of the work history of the individual involved and not according to the work patterns of his profession in general. (Emphasis added.)

Clearly, Claimant is required to carry the burden of proving that the death resulted from an accident and, as stated above, she may do this by proving her husband's death resulted from an unusual exertion or strain. Szcykalski v. Workmen's Compensation Appeal Board, 22 Pa. Commonwealth Ct. 159, 348 A.2d 442 (1975).

The referee made Finding of Fact No. 2, which follows in part:

2. . . . All of the aforesaid injury and subsequent development were caused when claimant's decedent was stricken immediately following heavy lifting in the course of his employment with the defendant to which he was unaccustomed in his usual occupation which occurred when he and several fellow workmen were removing the iron or steel grating from a section of the defendant's compression room floor.

Based upon this finding and the referee's ruling that the Decedent's statement to Claimant that "it was heavy, so heavy" was admissible, the referee concluded

[ 33 Pa. Commw. Page 109]

    that Decedent had sustained a compensable injury and granted benefits.

Upon Employer's appeal, the Board found that the record contains no evidence upon which the Referee could base his finding that the decedent engaged in: '. . . heavy lifting in the course of his employment with the defendant to which he was unaccustomed in his usual occupation. . . .'

The Board then assumed arguendo that the deathbed statement of Decedent was admissible but reasoned further that this statement was irrelevant to the issue of whether this work in question was unusual in light of the work history of the Decedent. Rather, the Board noted that

[T]he only testimony on that issue was given by Defendant's witness William Mulligan.

We note that aside from the bald statement by the Referee in Finding of Fact No. 2 that the lifting which decedent had been involved in was work to which he 'was unaccustomed in his usual occupation,' the Referee does not cite any facts or testimony to support this statement.

We have read and reread Mr. Mulligan's testimony and can find nothing to support the Referee's finding that the decedent's activities were unusual.

On the contrary, his entire testimony is to the effect that the decedent was a member of a work gang engaged in the procedures usually used by that gang in the repair of a defective compressor.

Counsel for the Defendant specifically asked Mr. Mulligan about the nature of the work that morning:

Q. The work that you were doing that day is normal work for your gang?

A. Yes sir.

[ 33 Pa. Commw. Page 110]

Our careful scrutiny of the record supports the Board's view that the referee's finding that Decedent was engaged in heavy lifting to which he was unaccustomed is without support. Decedent's statement that it was heavy provides no indication of whether he had been lifting the heavy object referred to, whether this occurred while at work, or what is more important, whether it was unusual for him to have done so.

Having vacated the finding on the issue of unusual strain, the Board was not in error in concluding that Claimant failed to meet her burden of proving that a compensable accident had occurred.

Accordingly, we

Order

And Now, this 21st day of December, 1977, the decision of the Workmen's Compensation Appeal Board is hereby affirmed.

Disposition

Affirmed.


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