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HOUSE MOVING AND INDUSTRIAL RIGGING v. COMMONWEALTH PENNSYLVANIA (09/22/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 22, 1978.

HOUSE MOVING AND INDUSTRIAL RIGGING, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND DOLORES T. HENCHELL, WIDOW OF GERALD A. HENCHELL, DECEASED, RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Dolores T. Henchell, Widow of Gerald A. Henchell v. House Moving and Industrial Rigging, Inc., No. A-71464.

COUNSEL

C. S. Fossee, with him Murovich, Reale & Fossee, for petitioner.

Jan C. Swensen, with him Scott, Swensen & Scott, and James N. Diefenderfer, for respondents.

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

Author: Mencer

[ 38 Pa. Commw. Page 22]

House Moving and Industrial Rigging, Inc. (HMIR) appeals from an order of the Workmen's Compensation Appeal Board affirming a referee's award of death benefits to Dolores T. Henchell, the widow of Gerald A. Henchell. We affirm.

Gerald Henchell (Henchell) was employed by HMIR as a laborer. On November 25, 1972, while in the course of his employment, Henchell was in an accident which resulted in a back injury. On December 5, 1972, he was admitted to a hospital where surgery

[ 38 Pa. Commw. Page 23]

    on his back was performed. His treating physician regarded his recovery as good and approved his return to work on April 10, 1973. Henchell returned to his old job and worked a normal schedule until his death on June 25, 1973. However, according to the testimony of Mrs. Henchell, throughout the period from the surgery until his death Henchell suffered periodically from severe chest pains, numbness in his arms, nausea and vomiting, cyanosis, shortness of breath, and exhaustion. These symptoms were not reported to Henchell's physician, however. The immediate cause of his death on June 25 was determined to be an acute coronary thrombosis, i.e., a blood clot in a coronary artery.

Mrs. Henchell's fatal claim petition alleged that the back injury and surgery led to the thrombosis and Henchell's death. After several hearings, the referee agreed, making the following findings of fact:

Seventh: At the time of said accident and at

     the time of the back surgery, Gerald

Henchell had a heart condition

     which was unknown to him and was

     not revealed by tests conducted

     while he was hospitalized in Decem-

     ber 1972. Such tests consist of a

     chest x-ray and an electro-cardio-

     gram, both of which were normal.

Eighth: The immediate cause of death was

     a coronary thrombosis.

Ninth: Gerald Henchell never fully recov-

     ered from the injury suffered No-

     vember 25, 1972.

Tenth: The accident of November 25, 1972

     and the subsequent hospitalization

     and surgery necessitated by the ac-

     cident so aggravated Gerald Hen-

     chell's pre-existent heart condition

     that it hastened and resulted in his

     death, which occurred on June 25,

1973.

[ 38 Pa. Commw. Page 24]

If, as the referee found, the accident and subsequent surgery did in fact hasten Henchell's death, benefits were properly awarded to Henchell's widow. See, e.g., Parks v. Winkler, 199 Pa. Superior Ct. 224, 184 A.2d 124 (1962) (death caused by immobilization following surgery necessitated by accident); Thomas v. Susquehanna Collieries Co., 148 Pa. Superior Ct. 161, 169, 25 A.2d 98, 102 (1942); 1 A. Barbieri, Pennsylvania Workmen's Compensation and Occupational Disease, § 6.21(6)(f)-(h) (1975). This aspect is not disputed.

HMIR contends, however, that there is no competent evidence to support a finding that Henchell's death was in any way related to the accident or surgery. In examining this contention, we must, of course, consider the evidence in the light most favorable to the party who prevailed before the referee and the Board, here Mrs. Henchell. See, e.g., Stump v. Follmer Trucking Co., 4 Pa. Commonwealth Ct. 110, 286 A.2d 1 (1972).

HMIR's major contention is that Mrs. Henchell's testimony concerning the symptoms experienced by her husband after the surgery and prior to his death was hearsay and therefore incompetent to support the referee's findings. Mrs. Henchell is a registered nurse, and her testimony was in large part based upon her own observations of her husband's behavior, e.g., his vomiting, poor color, apparent exhaustion after work, and his manifestations of pain. However, her testimony was also based in part upon Henchell's statements to her concerning his physical condition, e.g., his reports of chest pains and numbness in his arms. To the extent that Mrs. Henchell's testimony was based on such reports, we believe the evidence

[ 38 Pa. Commw. Page 25]

    was admissible in a workmen's compensation case as an exception to the hearsay rule.

The prevailing view in other jurisdictions in non-workmen's compensation cases appears to be that statements of a declarant's then existing physical condition, such as expressions of pain, are admissible as exceptions to the hearsay rule, regardless of to whom the statements are directed. See, e.g., Fed R. Evid. 803(3), 6 J. Wigmore, Evidence §§ 1718, 1719 (Chadbourn rev. 1976); C. McCormick, Evidence § 265 (1954). Although this exception has apparently never been explicitly recognized in Pennsylvania, neither the Board nor the referee are bound by the technical rules of evidence. Section 422 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834. In addition, our Supreme Court has indicated that the exceptions to the hearsay rule may be more flexibly applied in workmen's compensation cases than in other areas. See Cody v. S.K.F. Industries, Inc., 447 Pa. 558, 566-69, 291 A.2d 772, 776-77 (1972).*fn1 Even assuming that the prevailing view will not be recognized generally in Pennsylvania, we believe that the humanitarian purposes of the Act require it to be recognized in workmen's compensation cases such as this where

[ 38 Pa. Commw. Page 26]

    the declarant is deceased and unable to testify. We therefore hold that Mrs. Henchell's testimony, in its entirety, is competent evidence to support the referee's findings.*fn2

HMIR also argues that the medical evidence was not sufficiently unequivocal to support the finding that the back injury and surgery hastened Henchell's death. This argument is without merit. Dr. Cyril Wecht, the coroner of Allegheny County, testified without equivocation that, in his opinion, the trauma associated with the accident and the surgery placed increased demand on Henchell's heart. In Dr. Wecht's opinion, Henchell was already suffering from arteriosclerosis,*fn3 and his arteries were therefore incapable of supplying a sufficient flow of blood to his heart to meet the increased burden. According to Dr. Wecht, this "artery insufficiency" resulted in the chest pains and other symptoms described by Mrs. Henchell. These symptoms served to further increase the strain on Henchell's heart, culminating in the formation of the blood clot which directly caused Henchell's death. This testimony in itself is sufficient to support the referee's finding. Moreover, the expert witness called in rebuttal by HMIR agreed that trauma associated with pain and surgery could indeed cause the formation of a blood clot in a person already suffering from arteriosclerosis, although he was of the opinion that this had not happened in Henchell's

[ 38 Pa. Commw. Page 27]

    case. The referee's resolution of this conflict was clearly reasonable and will not be disturbed.*fn4 See, e.g., Czankner v. Sky Top Lodge, Inc., 13 Pa. Commonwealth Ct. 220, 308 A.2d 911 (1973).

HMIR also argues that, after Mrs. Henchell had testified on direct examination, the referee made a remark which indicated that he had already decided the case in her favor.*fn5 We fail to see any indication of bias in the referee's remarks. Moreover, HMIR never objected to the remark or made a motion that the referee disqualify himself. Rather, HMIR proceeded to cross-examine Mrs. Henchell and to participate in three more scheduled hearings on the matter. Under these circumstances, any objections as to the referee's alleged bias were clearly waived.

We find merit in HMIR's contention that it should not be required to pay Mrs. Henchell's attorney's fees under Section 440 of the Act, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. § 996. Since the status of Mrs. Henchell's hearsay testimony under Pennsylvania law was uncertain at the time of the hearing, and since Dr. Wecht relied heavily upon Mrs. Henchell's testimony, we believe that HMIR had a reasonable basis for contesting the award. We will therefore reverse the order of the Board insofar as it ordered HMIR to pay Mrs. Henchell's attorney's fees.

[ 38 Pa. Commw. Page 28]

Order

And Now, this 22nd day of September, 1978, the appeal of House Moving and Industrial Rigging, Inc., is hereby dismissed, and the order of the Workmen's Compensation Appeal Board, dated May 5, 1977, affirming the award of a referee dated March 10, 1976 is hereby affirmed in part and reversed in part. Accordingly, it is ordered that judgment be entered in favor of Dolores T. Henchell, widow of Gerald A. Henchell, deceased, and against House Moving and Industrial Rigging, Inc., in the amount of $94 per week, beginning June 25, 1973 and continuing into the future, together with interest at the rate of 10 percent per annum on deferred payments of compensation from the date due to the date paid, all within the terms and limits of The Pennsylvania Workmen's Compensation Act.

In addition, House Moving and Industrial Rigging, Inc., is directed to reimburse Dolores T. Henchell for reasonable burial expense, in the amount of $750, and to pay the following bills of costs:

Cyril Wecht, M.D., a witness $500.00

Cornelia Lukitsh, a witness 12.00

Thomas Malloy, an investigator 432.20

Coroner's report 5.00

South Side Hospital records 20.00

The order of the Board dated May 5, 1977, insofar as it affirms the order of the referee directing House Moving and Industrial Rigging, Inc., to pay Dolores T. Henchell's attorney's fees, in the amount of 20 percent of the referee's award, is hereby reversed.

Disposition

Affirmed.

Dissenting Opinion by Judge Wilkinson, Jr.:

As acknowledged by the majority opinion, the physician who treated the decedent declined to express

[ 38 Pa. Commw. Page 29]

    an opinion on the relationship of the accident and surgery to the decedent's death. The decedent never related the "symptoms" to his doctor that the widow was permitted to testify he related to her. Based on these clearly hearsay statements another physician who never personally examined the decedent was permitted to give the essential medical testimony on which this award is based. I cannot stretch the humanitarian purposes of the act to permit the person who is to benefit to be given such a tempting exception to the hearsay rule. I respectfully dissent.


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