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decided: February 26, 1979.


Appeal from the Order of the Workmen's Compensation Appeal Board in case of Rosemarie Krawchuk, widow of John Krawchuk, deceased v. Philadelphia Electric Company, No. A-72689.


Albert Ring, with him Don F. D'Agui, and D'Agui & Del Collo, for appellant.

Thomas F. McDevitt, for appellee.

Judges Crumlish, Jr., Rogers and Craig, sitting as a panel of three. President Judge Bowman and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle and MacPhail. Judges Crumlish, Jr. and Craig did not participate. Opinion by Judge Wilkinson, Jr. Dissenting Opinion by Judge Rogers. Judge DiSalle joins in this dissent. Dissenting Opinion by Judge Blatt.

Author: Wilkinson

[ 40 Pa. Commw. Page 593]

Petitioner (claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) which reversed an award of compensation made by the referee on the grounds that a compensable injury had not been proven as a matter of law within the meaning of Section 301(c) of The Pennsylvania Workmen's Compensation Act (Act).*fn1 We affirm.

Claimant is the widow of John Krawchuk, who sustained a fatal myocardial infarction (heart attack) in his home shortly after midnight on May 10, 1973. The decedent, 52 at the time of his death, had been employed by the respondent, Philadelphia Electric Company,

[ 40 Pa. Commw. Page 594]

    as an electrical engineer for approximately 27 years.

On October 12, 1973, the claimant filed a fatal claim petition alleging the decedent's heart attack was due to excessive strain and pressure in connection with his work. At the referee's hearing, claimant testified that her husband would frequently bring work home from the office and work in his shop in the basement after dinner. She testified that on the night of his death decedent worked for approximately five hours after dinner on a paper which he was to deliver at a public utilities meeting in Los Angeles on May 14, 1973. Claimant also offered the testimony of decedent's physician who examined the decedent during a routine office visit the day before his death. The decedent told his physician that he was under stress because he was concerned about the paper; the physician then stated that in his opinion there was a causal connection between the stress decedent related to him and his death the next day.

The employer presented nine witnesses, all of whom worked in the same engineering division with the decedent. The engineer in charge of the division testified that in addition to his regularly assigned duties, decedent had been working on a specially assigned project, called PMS4, regarding the potential use of computers in the division. The supervisor testified that decedent was offered the project because of his special interest and experience; that decedent voluntarily undertook the project; that he generally worked alone, although help was available to him; and that no deadline was set on the project. He further stated that decedent was not required to work beyond regular business hours and that he (his supervisor) was not aware that the decedent was working at home. Five other witnesses who either were or had been decedent's supervisors also testified that decedent had

[ 40 Pa. Commw. Page 595]

    not been required to work at home or beyond regular business hours. These witnesses further testified that after decedent returned to work following a non-work related heart attack in 1967 he was given a reduced work load. His immediate supervisor testified that at the time of his death decedent was assigned to complete one substation design with a 1975 deadline.

The referee made the following findings of fact relative to his conclusion that the heart attack constituted a compensable injury:

7. At the time of his death, Claimant's decedent was working under great and unusual stress stemming from the work he was doing in connection with a special project known as 'PMS4', and a treatise he was to deliver, on behalf of his employer, in California. . . .

10. All of the above activities constituted additional and unusual exertion on the part of Claimant's decedent, arising from and related to his employment.

11. On the day prior to his heart attack, Claimant's decedent was examined by Dr. Albert Kraft, who at the time found the Claimant's decedent to appear tired and under great stress due to his added work load.

12. For five hours prior to the heart attack, Claimant's decedent had been working in his home on the treatise. . . .

13. Dr. Kraft, a cardiology specialist, testified as to a causal relationship between the stress occasioned by Claimant's decedent's heavy work load and the coronary which he sustained on May 10, 1973. . . .

[ 40 Pa. Commw. Page 596]

Therefore, the referee concluded that the decedent

     suffered a compensable injury within the meaning of the Act when he sustained a fatal coronary attack at his home after an extended period of additional and unusual strain and exertion, including five hours at home immediately prior to his coronary attack, in carrying on for his employer his duties in a special project at work and in the preparation of the material for a treatise he was to deliver. . . .

On appeal, the Board vacated the referee's conclusions of law that the decedent had suffered a compensable injury, finding that the referee failed to make a necessary finding of fact that the decedent had been in the course of his employment at the time of his death. After a review of the testimony, the Board concluded that there was insufficient evidence to support such a finding and dismissed the claim.

Before this Court, claimant argues that the Board exceeded its authority in dismissing the claim because the Board's conclusion that decedent was not in the course of his employment based on the employer's evidence was tantamount to rejecting a finding of fact made by the referee which found this testimony "not to be persuasive as to the lack of stress . . . especially because they were not familiar with the extent of the work performed by claimant's decedent at his home . . . and particularly during several hours on the evening immediately preceding his death."

However, it is clear from a reading of this finding that the referee was referring to the causal relationship between decedent's death and the stress he experienced from his work, rather than a finding relating to facts that must be established to show that the employee was in the course of his employment at the time of his death. The question of whether an employee

[ 40 Pa. Commw. Page 597]

    is in the course of his employment in order to qualify for benefits under the Act is one of law and the referee's determination on this issue is subject to review and reversal by the Board. Buchan v. Royal Pizza House, Inc., 28 Pa. Commonwealth Ct. 121, 367 A.2d 824 (1977). Further, the burden is upon the claimant to prove that the injury was sustained in the course of employment. J.R. Hess, Inc. v. Workmen's Compensation Appeal Board, 17 Pa. Commonwealth Ct. 87, 329 A.2d 923 (1975). The only finding of fact made by the referee concerning course of employment ...

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