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BOROUGH MORRISVILLE v. COMMONWEALTH PENNSYLVANIA (09/23/80)

decided: September 23, 1980.

BOROUGH OF MORRISVILLE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ELAINE GRANT, WIDOW OF ALVIN GRANT, DECEASED, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Elaine Grant, widow of Alvin Grant, deceased v. Borough of Morrisville, No. A-76154.

COUNSEL

Thomas R. Bond, of counsel, LaBrum and Doak, for petitioner.

Theodore M. Kravitz, with him Barry Ballow, of Ballow & Associates, for respondents.

President Judge Crumlish and Judges Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 54 Pa. Commw. Page 42]

This is an appeal by employer Borough of Morrisville (Borough) from an award of widow's benefits under Section 307 of The Pennsylvania Workmen's

[ 54 Pa. Commw. Page 43]

Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 561. The award was on the petition of respondent Elaine Grant (claimant), who alleged that her husband, Alvin Grant, sustained a fatal heart attack while working as a volunteer fireman for the Borough. His death occurred March 21, 1971.

After the first hearing of the case, the referee denied the claim. The denial was based on the referee's conclusion that the claimant had not met her burden of proving that her husband's death was the result of a compensable "accident," within the meaning of Section 301(a) of the Act, 77 P.S. § 431.*fn1 Also, the referee totally discounted the testimony of the claimant's medical expert because it had been given in response to a hypothetical question containing non-record facts. The referee's decision to strike that testimony came after the hearing, during which the referee had admitted the testimony over objection.

The claimant appealed the referee's decision to the Workmen's Compensation Appeal Board (Board). The Board set aside the decision and remanded the case to the referee with directions to consider certain case law relative to injuries sustained by volunteer firemen. Additionally, the referee was instructed to consider the medical testimony he had discounted. The Board rightly reasoned that it was prejudicial error for the referee to reverse his ruling on the medical testimony after the hearing had ended. That deprived claimant's counsel of the opportunity to cure any defects during the hearing itself. The Borough's appeal from that remand order was quashed by this Court on February 4, 1977.

At the remand hearing, claimant's medical expert again testified in response to a hypothetical question

[ 54 Pa. Commw. Page 44]

    posed by claimant's counsel. The appellant objected to the question stating that it was not supported by the record. When the referee asked him to be more specific, counsel cryptically remarked, "I will let the ...


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