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CITY ALTOONA AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (03/14/80)

decided: March 14, 1980.

CITY OF ALTOONA AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN P. MIROBELLI AND COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John P. Mirobelli v. City of Altoona and Commonwealth of Pennsylvania, No. A-73893.

COUNSEL

Alan R. Krier, of Jubelirer, Carothers, Krier & Halpern, for petitioners.

Thomas G. Peoples, Jr., for respondent.

Judges Crumlish, Jr., Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt. President Judge Bowman did not participate in the decision in this case. Judge DiSalle did not participate in the decision in this case.

Author: Blatt

[ 50 Pa. Commw. Page 179]

The City of Altoona and the Pennsylvania Manufacturers' Association Insurance Company (petitioners) appeal here from an order of the Workmen's Compensation Appeal Board (Board) upholding a referee's award of disability benefits to John P. Mirobelli (claimant).

The claimant had been employed until 1976 by the City of Altoona as a fireman and had a history of heart trouble beginning in October of 1972 when he suffered a myocardial infarction while in the course of employment. He received disability compensation for this injury until August of 1973, when, upon the improvement of his heart condition, he returned to his duties as an Altoona fireman. On April 18, 1976, in the course of his work at a major fire, he suffered severe chest pains, lost consciousness, and was hospitalized. He remained in the hospital for four days and his medical tests revealed no evidence of another myocardial infarction but he continued to experience chest pains and did not return to work. On January 7, 1977, he filed a claim for disability benefits alleging that he had suffered a myocardial infarction while fighting the fire on April 18, 1976.

The petitioners contend that the referee's finding that the claimant suffered a compensable injury on April 18, 1976 was not based on substantial evidence. In particular, they argue that the testimony of the

[ 50 Pa. Commw. Page 180]

    claimant's physician, Dr. Marvin Meisner, clearly indicates that the claimant did not suffer a myocardial infarction on the date in question.

While our examination of the record does indicate that the evidence given was that the claimant did not suffer a myocardial infarction at that time, we believe, nevertheless, that there was substantial evidence for the referee's finding that the claimant then suffered some disabling heart injury other than an infarction, and that this entitled him to benefits.*fn1

The issue here is essentially that there was a variance between what the claimant alleged in his claim petition and what he proved at the hearing. The claim petition alleged that he suffered an infarction yet his physician at the hearing testified that he had suffered an indistinct heart injury other than an infarction. The physician's testimony was in part as follows:

[S]omething about the heart had to change because after that time in April he had chest pain with exertion. This was angina-type pain. [This is] indicative of a diminished blood supply to some part of the heart to ...


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