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BABCOCK & WILCOX CONSTRUCTION CO. v. JOSEPH ST. JOHN (12/12/79)

decided: December 12, 1979.

BABCOCK & WILCOX CONSTRUCTION CO., INC. AND THE TRAVELERS INSURANCE COMPANY, INSURANCE CARRIER, PETITIONERS
v.
JOSEPH ST. JOHN, DECEASED, BY SYLVANIA, WIDOW, RESPONDENT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph St. John, Deceased, by Sylvania, Widow v. Babcock & Wilcox Construction Co., Defendant, Docket No. A-72467.

COUNSEL

Richard D. Harburg, with him Thomas W. Murphy, Joseph J. Murphy, Robert J. Murphy, and Murphy, Murphy & Murphy, for petitioners.

Neil A. Morris, with him Wilbur Greenberg, and, of counsel, Sidkoff, Pincus, Greenberg & Green, P.C., for respondent.

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

Author: Mencer

[ 48 Pa. Commw. Page 2]

Babcock & Wilcox Construction Co., Inc. (Babcock) and its insurance carrier, The Travelers Insurance Company, appeal an order of the Workmen's Compensation Appeal Board (Board) granting compensation to Sylvania St. John (claimant) for the death of her husband, Joseph St. John (decedent). We affirm.

On June 14, 1972, decedent, a boilermaker, reported to his construction site shortly before his scheduled starting time of 8 a.m. After checking in, decedent changed into his work clothes in the building provided by Babcock and reported for work. Because of inclement weather, however, decedent did not immediately begin working but engaged in conversation with his fellow employees. Subsequently, decedent walked to a portable toilet which was approximately 10 to 15

[ 48 Pa. Commw. Page 3]

    feet away. As he approached the facility, decedent stumbled over a ledge or step leading to the toilet and fell forward into the facility. Decedent was taken unconscious from the building and rushed to a hospital where he was pronounced dead on arrival. The cause of death was a heart attack.*fn1

Claimant filed a fatal claim petition pursuant to The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq., alleging that decedent's heart attack was caused by the trauma of his fall. The referee, after several hearings, awarded claimant compensation. The Board, however, reversed, finding that claimant had not proved that decedent's injury was related to his employment. Upon claimant's petition for a rehearing, the Board reversed itself and ordered compensation. This appeal followed.

Babcock argues that the Board erred in granting a rehearing. We disagree. The decision to grant or deny a rehearing, which is authorized by Section 426 of the Act, 77 P.S. § 871, is within the Board's discretion and will only be reversed for an abuse of that discretion. Douglas v. Workmen's Compensation Appeal Board, 32 Pa. Commonwealth Ct. 156, 377 A.2d 1300 (1977); General Woodcraft & Foundry v. Workmen's Compensation Appeal Board, 13 Pa. Commonwealth Ct. 357, 318 A.2d 385 (1974). Here, the Board granted the rehearing because it believed it had misapplied the law, in view of our decision in Workmen's Compensation Appeal Board v. United States Steel Corp., 31 Pa. Commonwealth Ct. 329, 376 A.2d 271

[ 48 Pa. Commw. Page 4]

(1977), which was reported shortly after the Board's decision to deny compensation. Although a rehearing is generally granted to allow a party to present newly discovered, non-cumulative evidence, see, e.g., Douglas, supra, we cannot say the Board abused its discretion by granting a rehearing to correct a mistake of law or its misapprehension of an issue. General Woodcraft & Foundry, supra; Lieberman ...


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