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PLUMBERS CONTRACTORS v. COMMONWEALTH PENNSYLVANIA (06/12/79)

decided: June 12, 1979.

PLUMBERS CONTRACTORS, INC. AND BITUMINOUS INSURANCE COMPANIES, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND RONALD JAMES LEWELLYN, DECEASED, BY LOIS LEWELLYN, NOW LOIS KADEMENOS, WIDOW, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Lois Kademenos, w/o Ronald James Lewellyn v. Plumbing Contractors, Inc., No. A-74578.

COUNSEL

George H. Thompson, with him Hirsch, Weise & Tillman, for petitioners.

Roger J. Ecker, with him Peacock, Keller, Yohe, Day & Ecker, for respondent.

Judges Wilkinson, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 43 Pa. Commw. Page 339]

This rather unusual factual situation has been before the referee and the Workmen's Compensation Appeal Board (Board) twice. In both instances the referee awarded benefits. On the first appeal, the Board set aside the referee's award of benefits and remanded the case for further consideration of the referee. The basis for the remand was that the referee had found that the injury resulting in death was received "in the course of a fall." In fact, there is no evidence in the record to show whether the decedent fell as a result of a heart attack or whether he suffered the heart attack during the course of the fall. As the Board pointed out, the real question for the referee to determine was whether decedent died as a result of an injury received in the course of his employment. Both parties were given the right to present additional evidence at the remand hearing, but neither elected to do so. Indeed, while the claimant presented medical evidence from two physicians, there was no medical evidence presented on behalf of the employer.

In brief, the facts are that decedent, six feet, three inches tall, and weighing 240 pounds, reported for

[ 43 Pa. Commw. Page 340]

    work at or about 8:00 A.M. on the day of his death. Shortly after reporting for work, he was sent some 150 yards to a pick-up truck to obtain a plastic jug, weighing perhaps a few ounces. The plastic jug was to be used as a container in which to mix oil and gasoline. It is undisputed that decedent walked the distance to obtain the jug, taking perhaps five to seven minutes and was then found on the ground with the plastic jug on the ground nearby. Decedent was taken to the emergency room of Dravo Corporation where the company by which he was employed was doing some work. Dravo's medical director was summoned. He learned that while the decedent was alive at the time he arrived at the emergency room he was dead by the time the Doctor examined him at 8:35 A.M. An unidentified co-employee of decedent told the Doctor that the decedent was "unloading a fuel tank" when he "fell to the ground." This Doctor testified to this by deposition and an exhibit was produced which showed that the Doctor had entered this on the medical reports prepared at the time.

For purposes of this case we can assume that the statement to the Doctor by the unidentified co-worker and the medical report were hearsay, could not be the sole basis for an award, but could be considered along with all other evidence in deciding the claim. Chelden Radio Cab Co. v. Workmen's Compensation Appeal Board, 10 Pa. Commonwealth Ct. 478, 310 A.2d 726 (1973).

Without laboring the point, of course, it is important to keep in mind that the workmen's compensation law in Pennsylvania no longer requires an "unusual strain." We have been affirmed in our recent decisions in this matter:

Since the enactment of the 1972 amendments to the Workmen's Compensation ...


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