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SPATOLA & THOMPSON AND ATLANTIC COMPANIES v. COMMONWEALTH PENNSYLVANIA (05/30/79)

decided: May 30, 1979.

SPATOLA & THOMPSON AND THE ATLANTIC COMPANIES, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND MARGARET KISSELL, WIDOW, JOHN KISSELL, JR., DECEASED, RESPONDENTS. MARGARET KISSELL, WIDOW, JOHN KISSELL, JR., DECEASED, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, SPATOLA & THOMPSON AND THE ATLANTIC COMPANIES, RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board in case of Margaret Kissell, Widow of John Kissell, Jr., Deceased v. Spatola & Thompson, No. A-73707.

COUNSEL

William F. Sweeney, with him Harvey, Pennington, Herting & Renneisen, Ltd., for Spatola & Thompson and The Atlantic Companies.

Alfred Marroletti, for Margaret Kissell.

Judges Mencer, Rogers and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 43 Pa. Commw. Page 138]

Spatola & Thompson and The Atlantic Companies, whom we will refer to as the employers, and Margaret Kissell, a claimant of survivors' workmen's compensation benefits, have appealed from a decision of the

[ 43 Pa. Commw. Page 139]

Workmen's Compensation Appeal Board affirming and amending a referee's decision awarding benefits to Mrs. Kissell.

Mrs. Kissell is the widow of John Kissell, who was employed as a warehouseman by Spatola & Thompson on the day of his death, July 8, 1974. On that day, Mr. Kissell was injured when a case of canned goods struck him on the chest, causing him shortness of breath. He reported the occurrence to his employers, who told him to go to the hospital. While waiting to be examined at the hospital, Mr. Kissell suffered a fatal myocardial infarction.

On November 26, 1975, Mrs. Kissell filed a fatal claim petition on behalf of herself and a minor son. A referee, after hearing, awarded compensation of $158.18 a week from the date of Mr. Kissell's death until December 26, 1977, the son's eighteenth birthday, and $121.01 a week thereafter. The referee also directed the employers to pay a penalty of 20% of the amount of the award for unreasonable and excessive delay (pursuant to Section 435(d)(i) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, added by Act of February 8, 1972, P.L. 25, § 3, 77 P.S. § 991(d)(i)), and in addition 20% of the amount of the award as claimant's attorney's fees (pursuant to Section 440 of the Act, 77 P.S. § 996). The employers appealed the referee's order to the Appeal Board, which reversed the orders for payment of penalty and attorney's fees and which reduced the amount of the award to $142.36 a week for the period preceding the son's eighteenth birthday.

The employers first say that there is no competent evidence in the record supporting the finding that Mr. Kissell's death was related to his employment. We disagree. Dr. Victor A. DiGilio, a specialist in internal medicine with extensive experience in the

[ 43 Pa. Commw. Page 140]

    treatment of cardiovascular disease, testified that the stress of the blow to the chest by a box was the "material precipitating cause of this man's death." Dr. DiGilio based his opinion on Mr. Kissell's hospital records and on the facts of record ...


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