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WESTINGHOUSE ELECTRIC CORPORATION v. COMMONWEALTH PENNSYLVANIA (04/20/79)

decided: April 20, 1979.

WESTINGHOUSE ELECTRIC CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND MARGARET L. POLLARD, WIDOW OF WALTER H. POLLARD, DECEASED, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Margaret L. Pollard, widow of Walter H. Pollard, deceased v. Westinghouse Electric Corporation, No. A-73858.

COUNSEL

William Alvah Stewart, III, with him Mark A. Willard, and Eckert, Seamans, Cherin & Mellott, for petitioner.

Samuel J. Goldstein, for respondents.

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

Author: Rogers

[ 42 Pa. Commw. Page 148]

This is the appeal of the Westinghouse Electric Corporation (Westinghouse) from an order of the Workmen's Compensation Appeal Board affirming a referee's award of benefits to the widow of Walter H. Pollard, a Westinghouse employee. We affirm.

Mr. Pollard was employed by Westinghouse as an internal consultant, a position which required him to travel from his home in Pittsburgh to Westinghouse facilities throughout the country. On October 7, 1974, Mr. Pollard and another Westinghouse employee named Shea were to travel together to a Westinghouse facility at Hampton, South Carolina on a project which it was believed would take about a week. Mr. Pollard missed his flight from Pittsburgh but caught a later one the same day and joined Shea in Hampton late in the afternoon of October 7. They toured the Hampton plant and were then taken to Micarta Lodge, living accommodations provided by Westinghouse for visiting employees and customers. It was not required that

[ 42 Pa. Commw. Page 149]

Pollard and Shea stay at Micarta Lodge and there were public accommodations available, but at some 18 miles from the plant. They arrived at Micarta Lodge at about 6:30 P.M. Mr. Pollard consumed a drink from a bottle of whiskey supplied from a locked cabinet by Westinghouse's local manager who had accompanied them to the Lodge. Mr. Pollard also called his wife on the telephone and told her he would be home on Thursday, October 10, 1974, a day earlier than he had been scheduled to return. Mr. Pollard then went out to dinner with Shea and three other Westinghouse employees. He drank a whiskey at dinner. The conversation was on social not business matters. The group returned to Micarta Lodge at 9:00 P.M. None of his companions observed anything unusual about Mr. Pollard's behavior at this time. Mr. Pollard then had more drinks in the lounge of the Lodge. By about 9:45 P.M. he appeared to the other persons present to be intoxicated. Two of the men were required to assist him to his bedroom. As the other men were leaving the bedroom, Mr. Pollard asked Shea what time Shea wanted him to arise the next morning. Shea said that he would call him at 7:00 o'clock A.M. Mr. Pollard was found dead the next morning on the floor of his bedroom.

Upon order of the coroner of Hampton County, South Carolina, two physicians performed an autopsy. One of them made a preliminary cause of death report recording that the immediate cause of Mr. Pollard's death was asphyxia due to the aspiration of gastric contents in turn due to acute ethanol intoxication. On a place provided on the form for reporting whether the death was by accident, suicide, homicide, or undetermined, the doctor reported "Accident". After a laboratory report of toxicological examination and urine drug screen was made, reporting a high level of ethanol in Mr. Pollard's system and overdoses of three

[ 42 Pa. Commw. Page 150]

    depressant drugs, the two doctors who made the autopsy reported as follows:

It is, therefore, the opinion of the prosecutors on the basis of the history as stated in this protocol, as well as the autopsy findings that the decedent came to his demise as a result of asphyxiation secondary to aspiration of gastric contents which resulted from central nervous system depression due to intoxication with ethanol and a combination of tranquilizers. It is further our opinion that the manner of death is best classified as accidental.

The claimant, Mr. Pollard's widow, filed a claim petition for workmen's compensation benefits. After nine hearings the referee made the following findings of fact:

SEVENTEENTH: Your referee further finds that taking into consideration the decedent's blood alcohol level of .322 or higher, and impairment of his intellectual reasoning, sensory perception, and motor coordination, he would not have been able to form a conscious, deliberate, intellectually reasoned intent to commit suicide and did not take his own life, especially in view of his medical history, his conduct, his family relationship, and his solid economic posture.

EIGHTEENTH: Your referee finds from competent, credible medical testimony that the decedent was unqualifiedly under the influence of alcohol and that his mental processes in terms of intellectual reasoning, sensory perception, and motor coordination were severly impaired and compromised ruling out the possibility or probability of suicide, especially in the absence of any other evidence to indicate suicide.

[ 42 Pa. Commw. Page 151]

NINETEENTH: On the basis of the unequivocal, competent, and credible lay and medical testimony together with the exhibits, it is the considered judgment and finding of your referee that the ...


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