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UNITED STATES STEEL CORPORATION v. COMMONWEALTH PENNSYLVANIA (12/11/80)

decided: December 11, 1980.

UNITED STATES STEEL CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND WILMA C. REPKO, WIDOW OF JOSEPH C. REPKO, DECEASED, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Wilma C. Repko v. United States Steel Corporation, No. A-77093.

COUNSEL

James D. Strader, with him Robert C. Jones, for petitioner.

Jay D. Glasser, for respondents.

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

Author: Wilkinson

[ 55 Pa. Commw. Page 251]

This appeal arises from an order of the Workmen's Compensation Appeal Board (Board) affirming the referee's decision awarding survival benefits and attorney's fees to Wilma C. Repko (claimant). We affirm the granting of benefits but reverse the award of attorney's fees.

Decedent was employed by petitioner (employer) as an overhead crane operator. His job required him to remove the lid from a box-shaped furnace, lift and maneuver heavy slabs of steel into the furnace, and

[ 55 Pa. Commw. Page 252]

    replace the lid. He had to watch out for workers who might be in dangerous areas beneath the crane and for the possibility that the steel slabs might hit and rupture utility gas lines. Claimant, decedent's widow, testified that decedent considered the work to be "exacting" and that it put him under a great deal of strain. To enter or leave the cab of the crane, decedent had to climb up and down several flights of open steps and walk across a cat-walk above the millyard. On March 24, 1975, near the end of his shift, and after completing all the work assigned, decedent came down from the crane cab, went into a crew "shanty" in the yard, sat down, and died soon after of a heart attack.

Claimant filed a fatal claim petition under The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq. and was subsequently awarded compensation and attorney's fees after a hearing before a referee. The Board affirmed*fn1 and employer appeals.

Employer first asserts that there was no substantial competent evidence to support the referee's decision that decedent's heart attack was causally connected to his employment. Where no obvious causal relationship exists between decedent's employment and his death, unequivocal medical evidence establishing such relationship must be produced by the claimant. Heffer v. GAF Corp., 29 Pa. Commonwealth Ct. 365, 370 A.2d 1254 (1977). The main source of evidence concerning causation was a deposition of Dr. John R. Misage, decedent's family physician, who, in response to a long hypothetical question unequivocally testified that decedent's heart attack was related to his work. Employer offered no medical testimony contradicting Dr. Misage's testimony. Instead, employer now complains

[ 55 Pa. Commw. Page 253]

    that the hypothetical question posed of Dr. Misage was improperly framed. Close scrutiny of the facts in evidence and the facts contained within the hypothetical question reveals that the difference in the actual facts and the assumed facts were not so great that the question was rendered improper. Furthermore, even if the question was improper, employer's counsel's failure to object at the time the question was asked precludes this attack on the question's propriety. Workmen's Compensation Appeal Board v. Jeddo Highland Coal Co., 19 Pa. Commonwealth Ct. 90, 95, 338 A.2d 744, 747 (1975). Keeping in mind our limited scope of review, Workmen's Compensation Appeal Board v. Auto Express, Inc., 21 Pa. Commonwealth Ct. ...


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