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

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 ...


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