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CITY JOHNSTOWN AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (02/01/78)

decided: February 1, 1978.

CITY OF JOHNSTOWN AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND MARY L. MAGRO, WIDOW OF NICK MAGRO, DECEASED, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Mary L. Magro, widow of Nick Magro v. City of Johnstown, No. A-70981.

COUNSEL

Edward G. Kuyat, Jr., with him Kuyat & Walker, for petitioners.

John J. Bagnato, with him Spence, Custer, Saylor, Wolfe & Rose, and James N. Diefenderfer, for respondents.

Judges Crumlish, Jr. and Blatt, sitting as a panel of two. Opinion by Judge Blatt.

Author: Blatt

[ 33 Pa. Commw. Page 465]

The Appellants, the City of Johnstown and the Pennsylvania Manufacturers' Association Insurance Company appeal from a decision of the Workmen's Compensation Appeal Board (Board) affirming a referee's award of compensation to Mary L. Magro, the widow of Nick Magro (decedent).

The decedent, who had been employed as a fireman by the City of Johnstown for twenty-nine years, suffered a heart attack in the course of his employment on June 7, 1971, and was awarded subsequently compensation under The Pennsylvania Workmen's Compensation Act*fn1 (Act) for temporary total disability. He collected benefits for approximately one year and then returned to work. On January 16, 1974, he suffered a fatal heart attack while at his home. His widow filed a Fatal Claim Petition under the Act, alleging that his death was caused by the 1971 injury, and it was granted.

Our scope of review here, under Section 44 of the Administrative Agency Law,*fn2 is limited to a determination

[ 33 Pa. Commw. Page 466]

    of whether or not an error of law was committed, constitutional rights were violated, or findings of fact were unsupported by substantial evidence.

The Appellants specifically contest the finding that decedent's death resulted from his prior heart attack, arguing that the finding is unsupported by substantial evidence and that the award of benefits was therefore erroneous.

In order to be granted benefits on a Fatal Claim Petition Award, a claimant must establish that death resulted "from such [compensable] injury and its resultant effects, and occurr[ed] within three hundred weeks after the injury." 77 P.S. ยง 411(1). The term "injury" is defined in the Act as including occupational diseases, and these include:

(o) Diseases of the heart . . . resulting in either temporary or permanent total or partial disability or death, after four years or more service in fire fighting . . . caused by extreme over-exertion in times of stress or danger or by exposure to heat, smoke, fumes ...


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