Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

F. W. KESTLE ASSOCIATES AND UNITED STATES FIDELITY & GUARANTY COMPANY v. COMMONWEALTH PENNSYLVANIA (10/20/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 20, 1980.

F. W. KESTLE ASSOCIATES AND UNITED STATES FIDELITY & GUARANTY COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ANDREW P. LEONARD, RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Andrew P. Leonard v. F. W. Kestle Associates, No. A-76799.

COUNSEL

Ronald Ganassi, of Will & Keisling, for petitioners.

Thomas P. Geer, for respondent, Andrew P. Leonard.

Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 54 Pa. Commw. Page 314]

Employer*fn1 appeals from an order of the board*fn2 affirming a referee's award of compensation to Alice Leonard, the widow of a deceased employee,*fn3 whose death resulted from a heart attack. Causation is at issue. We affirm.

Employer furnishes equipment for window displays in shops and stores. Decedent's duties, which occasionally required him to take overnight trips out of town, consisted of transferring props to job sites and placing them in display windows. Upon arriving at job sites decedent normally received assistance in unloading the props and placing them in the display windows.

The referee found that, within the 24-hour period immediately preceeding 9:00 p.m. May 7, 1975, the decedent suffered a heart attack and stroke which left him totally disabled until his death on September 11, 1975. The referee concluded that the facts indicated that decedent's heart attack and stroke were precipitated by decedent's exertion while he was in Wisconsin performing his duties for employer from May 4 through May 7, 1975.*fn4 Moreover, the findings of fact state that the decedent's death on September 11, 1975

[ 54 Pa. Commw. Page 315]

    was due to a heart attack caused in part by the stroke decedent suffered in May, 1975.

Therefore the referee awarded benefits to decedent's widow based upon her Fatal Claim Petition filed under The Pennsylvania Workmen's Compensation Act.*fn5

The employer contends that the record is devoid of substantial competent evidence causally connecting decedent's heart attack and stroke suffered in May, 1975 with his employment. We cannot agree.

After carefully examining the record, we hold that the testimony of Dr. John E. Love, decedent's family and attending physician during the period pertinent to this case, provided substantial competent evidence to establish a causal connection between decedent's injuries and his employment. Based upon the history decedent gave him on May 7, 1975, Dr. Love testified that decedent's heart attack and stroke suffered in May, 1975 were related to decedent's physical exertion while in Wisconsin performing his duties for employer.*fn6

[ 54 Pa. Commw. Page 316]

Although Dr. Love's testimony as to decedent's statements relating to the cause of decedent's injury was hearsay, we hold that the circumstances surrounding decedent's statements to Dr. Love bring those statements within the patient-doctor exception to the hearsay rule in workmen's compensation cases. See Cody v. S.K.F. Industries, Inc., 447 Pa. 558, 291 A.2d 772 (1972); see also Hatboro-Horsham School District v. Workmen's Compensation Appeal Board, 35 Pa. Commonwealth Ct. 73, 384 A.2d 1050 (1978). Thus Dr. Love's testimony pertaining to causation was competent and substantial.

We find no error in the referee attaching more weight to the testimony of claimant's medical witness than to that of the employer's witness. Determinations as to credibility and choice are within the province of the referee. Pennzoil United, Inc. v. Mitchell, 27 Pa. Commonwealth Ct. 76, 365 A.2d 905 (1976). Moreover, the referee may properly accept testimony of a general practitioner and reject the conflicting testimony of a specialist, and the referee need not specify his reason for the credibility decision. City of Hazleton v. Workmen's Compensation Appeal Board, 35 Pa. Commonwealth Ct. 477, 386 A.2d 1067 (1978).

[ 54 Pa. Commw. Page 317]

Because Dr. Love's testimony is alone sufficient to support the findings of the board, we find it unnecessary to discuss employer's contention that the referee erred in allowing the widow's testimony as a res gestae exception to the hearsay rule.

Accordingly, we affirm the decision of the board.

Order

And Now, this 20th day of October, 1980, the order of the Workmen's Compensation Appeal Board, Docket No. A-76799, dated August 6, 1979, is affirmed, and employer's appeal dismissed. Accordingly, it is ordered that judgment be entered in favor of claimant Alice Leonard and against F. W. Kestle Associates and its insurer, United States Fidelity & Guaranty Company, in the following amounts:

1. Weekly compensation at the rate of $93.33 is awarded to Alice Leonard, as the successor to the lifetime claim of Andrew Leonard for total disability commencing on May 7, 1975 and ending September 11, 1975.

2. In her own right as a dependent widow in her death claim, Alice Leonard is entitled to compensation starting September 12, 1975 and continuing to the present date and thereafter, at the maximum rate of $71.40.

3. Accrued compensation shall bear interest at the rate of 10%, from the date accrued, medical and subrogation claims from October 1, 1975.

4. From the total sums thus awarded and continuing there shall be an attorney's fee of 20% thereof in payment to Attorney Thomas P. Geer.

In addition to the foregoing, F. W. Kestle Associates and its insurer shall pay the following sums by way of reimbursement, subrogation and attorney's collection commission:

[ 54 Pa. Commw. Page 318]

To: Blue Cross $2,860.60

To: Blue Shield $206.67

To: Attorney Thomas P. Geer $1,533.63

To: Attorney Thomas P. Geer for

     reimbursement of sums expended $277.40

To: Alice Leonard for reimburse-

     ment for amount paid to John E.

Love, M.D. $62.00

To: Alice Leonard, the statutory

     amounts for funeral expenses $1,500.00

Disposition

Affirmed.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.