decided: August 10, 1981.
ISABELLA C. LEONARD, WIDOW OF ROY G. LEONARD, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND AUTOMOTIVE MAINTENANCE INC., D/B/A CHADDERTON TRUCKING, RESPONDENTS
Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Isabella C. Leonard, widow of Roy G. Leonard v. Automotive Maintenance, Inc., t/d/b/a Chadderton Trucking, No. A-77635.
David J. Graban, Fruit, Dill, Goodwin & Scholl, for petitioner.
Joseph F. Grochmal, with him Roy F. Walters, Jr., Fried, Kane, Walters & Zuschlag, for respondent, Automotive Maintenance Inc.
Judges Mencer, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.
[ 61 Pa. Commw. Page 201]
Isabella Leonard, claimant-widow of Roy G. Leonard, questions a denial of benefits by the Workmen's Compensation Appeal Board, reversing a referee's decision which had awarded compensation on the basis of her fatal claim petition.
The decedent, employed by Automotive Maintenance, Inc. (employer), died on February 16, 1977.
At the hearing, a co-worker testified that he and the decedent were working outdoors, with eight inches of snow on the ground and temperatures in the thirties. They removed a fuel tank from a truck by burning off the bolts, then rolled it about ten or fifteen feet. The co-worker stated that the tank was "pretty heavy"; he estimated that it weighed "somewhere between a hundred, a hundred fifty pounds."
The two took a coffee break in the warm cab of the truck they had driven to the scene, then prepared to remove the steering box from the truck by crawling underneath to locate and check the part. The co-worker stated that the decedent, who had crawled out to
[ 61 Pa. Commw. Page 202]
retrieve the torch, fell over and began gasping for breath, groaning, shaking and shivering. Ambulance attendants, immediately called, concluded that death had occurred.
The claimant testified that the decedent was 51 years old when he died, was taking medication to control his cholesterol level, and that, as the result of several hernia operations, was not supposed to lift heavy objects. She stated that he was under stress because of personality conflicts with other employees.
The claimant submitted into evidence a copy of the death certificate, signed by a lay deputy coroner, which listed as the cause of death "Acute Coronary Occlusion." Counsel for the employer objected to that conclusion because the coroner had not performed an autopsy.
The deposition of the decedent's doctor revealed that he treated the decedent in September of 1974 for elevated blood fat levels, a rapid heartbeat and a lung infection. The doctor stated that he considered the decedent to be a coronary candidate, and that he had advised the decedent that "his risk of future coronary disease was great."
Counsel for the claimant asked the doctor if he had reviewed the transcript of the co-worker's testimony and that of the claimant; the doctor answered affirmatively. Counsel then recited the sequence of decedent's activities immediately before his death, and asked: "Now, Doctor, under the circumstances that I've just recited, would you be willing to agree with the diagnosis as to the cause of death, as set forth in the death certificate, that is, the cause of death being acute coronary occlusion?"
The doctor agreed.
Counsel then presented a hypothetical question to the doctor, incorporating all the events revealed by the previous testimony, asking whether he could state
[ 61 Pa. Commw. Page 203]
"with any reasonable degree of medical certainty that the heart attack and acute coronary occlusion which killed Roy Leonard was causally connected with and directly related to his work and employment of that date . . .?"
The doctor opined that "this is true, that [the decedent] died as the result of exertion and stress put on him that day . . . it was a work-related thing . . . due to the cold and the exertion that he put forth."*fn1
Later testimony revealed that the doctor last examined the decedent on March 9, 1975 -- nearly two years before his death -- and that the doctor's license had been suspended at one time for a felony conviction of selling barbiturates.
The employer offered no testimony, medical or otherwise.
The referee awarded compensation, finding that the decedent, "during the course of his employment . . . died as a result of 'Acute Coronary Occlusion,' as stated on the death certificate," and that "the fatal heart attack . . . occurred in the course of his employment and was caused by his employment."
The board reversed*fn2 on two grounds. Because the death certificate was certified by a layman "unqualified
[ 61 Pa. Commw. Page 204]
to make a medical conclusion," it found that the referee's finding as to cause of death was based on incompetent medical evidence. In addition, the board held that the doctor's testimony was incompetent because of his felony conviction and the remoteness of his last examination of the decedent.
We note that the board, when taking no additional evidence, is bound by the referee's findings which are supported by substantial evidence, Workmen's Compensation Appeal Board v. Vivis, 23 Pa. Commonwealth Ct. 134, 350 A.2d 462 (1976).
The board was correct in considering the death certificate to be incompetent evidence to support the referee's finding as to cause of death. See Kubacki v. Metropolitan Life Insurance Co.,*fn3 193 Pa. Superior Ct. 138, 145, 164 A.2d 48, 53 (1960).
However, the board apparently did not consider that the cause-of-death finding could be upheld on the basis of the physician's testimony. The doctor's opinion,
[ 61 Pa. Commw. Page 205]
based on the facts elicited by the previous testimony and his knowledge of the decedent's physical condition, was wholly distinct from the death certificate and was not dependent upon it.
The doctor's testimony was not rendered incompetent by his felony conviction, Commonwealth v. Clemmer, 190 Pa. 202, 42 A. 675 (1899), nor by the length of time elapsed from his last examination of the decedent. Those matters relate to credibility and the weight to be accorded the testimony. The referee apparently credited the doctor's statements with some degree of veracity in spite of those factors; the board cannot disturb that judgment once made. Republic Steel v. Workmen's Compensation Appeal Board, 54 Pa. Commonwealth Ct. 113, 420 A.2d 37 (1980).
Therefore, because the record contained sufficient competent evidence to support the referee's finding that the decedent's cause of death was acute coronary occlusion, the board erred in substituting its finding on that issue for that of the referee. David v. Bellevue Locust Garage, 12 Pa. Commonwealth Ct. 602, 317 A.2d 341 (1974).
The issue of whether decedent's death was in the course of his employment and was caused by his employment is a question of law, properly considered by the board in its review. Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973); David v. Bellevue Locust Garage.
The claimant's medical testimony -- uncontradicted by the employer -- also established the causal connection between the employment and decedent's death. The doctor's unequivocal response to the hypothetical question posed by claimant's counsel was sufficient to establish the causal relationship, and the board erred in concluding that the claimant failed to fulfill her burden of showing that connection.
[ 61 Pa. Commw. Page 206]
Accordingly, we reverse the board's substitution of its findings and conclusions of law and reinstate the referee's findings Nos. 2 and 9 and conclusions of law.
And Now, August 10, 1981, the order of the Workmen's Compensation Appeal Board, No. A-77635, dated July 17, 1980, is reversed, and the findings and conclusions of the referee are reinstated.
Judgment is to be entered in favor of claimant Isabella C. Leonard, widow of Roy G. Leonard, and against Automotive Maintenance, Inc., d/b/a Chadderton Trucking and its insurer Pennsylvania National Insurance Co., in the following amounts:
1. Compensation in the amount of $125.46 per week, beginning February 17, 1977, and continuing within the terms and limitations of The Pennsylvania Workmen's Compensation Act.
2. Deferred payments of compensation shall bear interest at the rate of 10% per annum.
3. Reimbursement for burial expenses in the amount of $1,500.
4. Reimbursement for airfare to New Mexico, legal counsel in New Mexico, expert witness fee cost, and cost of deposition in the total amount of $556.60.
5. Automotive Maintenance, Inc. and its insurer are ordered to deduct from any and all payments due the claimant, now and in the future, a sum equivalent to 20% thereof, and to remit the same with the same frequency to David J. Graban, Esq., 120 E. State Street, Sharon, Pa. 16146, counsel for claimant, as an approved fee for his representation of her in these proceedings.