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LIBERTY BAKING COMPANY AND NATIONWIDE MUTUAL INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (12/31/81)

decided: December 31, 1981.

LIBERTY BAKING COMPANY AND NATIONWIDE MUTUAL INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JENNIE CARMADELLA, W/O ANTHONY, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Jennie Carmadella, widow of Anthony v. Liberty Baking Company, No. A-72-922.

COUNSEL

Lawrence M. Ludwig, with him Lucille Marsh, Henkleman, Kreeder, O'Connell and Brooks, for petitioners.

John R. Lenahan, with him Joseph P. Lenahan, Lenahan & Dempsey, for respondent, Jennie Carmadella.

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

Author: Williams

[ 63 Pa. Commw. Page 518]

In this workmen's compensation case, the widow Carmadella filed a fatal claim petition after the death of her husband on May 26, 1973, from a heart attack suffered at work. The employer appeals to this Court to reverse the award of benefits and remand the case for several reasons. First, it contends that the referee

[ 63 Pa. Commw. Page 519]

    and the Workmen's Compensation Appeal Board (Board) capriciously disregarded uncontradicted medical testimony concerning the chronic heart and lung diseases from which the deceased suffered. Secondly, the appellant alleges that necessary findings concerning the said ailments were absent from the referee's decision, making it legally deficient. Thirdly, the employer objects to the imposition of interest on the amount of the award, asserting that the delay between the death and the final award of benefits was caused by the claimant and her witness, and not by the employer.

Prior to its arrival in this tribunal, this case had an interesting track record. The August 15, 1973 fatal claim petition filed by the widow, was dismissed by the referee on April 25, 1974, when he was notified that the claimant would not pursue her suit. The April 25, 1974 fatal occupational disease petition was dismissed in much the same fashion on February 4, 1975 after the presentation of medical testimony. The March 6, 1975 fatal claim petition, amended over objection at the hearing on same, was pursued to a favorable conclusion, and the referee granted benefits on January 24, 1977. Upon appeal, the Board remanded, directing the referee to include in the record for his consideration, certain medical testimony he had excluded at the hearing.

The referee's decision of February 28, 1978, again awarded benefits to the widow, and once more, on appeal, the Board remanded to the referee for further medical testimony, relying on Consolidation Coal Co. v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 412, 391 A.2d 14 (1978), and Section 301(c) of The Pennsylvania Workmen's Compensation Act (Act),*fn1 77 P.S. ยง 411. The third time the

[ 63 Pa. Commw. Page 520]

    case came before the referee, he reaffirmed his previous award of benefits, concluding that the decedent's work activities, including the extreme heat and stress of his final hours, were "the direct cause of his heart failure, heart injury and demise." The employer appealed once again to the Board, which affirmed the referee, citing those instances in the record where the evidence supports the contested findings and conclusions.

The facts, as determined by the referee, indicate that the decedent suffered a fatal heart attack while he was working in the early morning hours of May 26, 1973. On that evening*fn2 there were only three employees available to do the work ordinarily performed by four men in the allotted time. As a result, the decedent had not only his own regularly assigned duties, but also additional responsibilities, including lifting 100-pound lumps of dough, repeated climbing to fill the flour hopper ...


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