decided: February 26, 1982.
BETHLEHEM STEEL CORPORATION, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND MARCELINO GARCIA, FATHER OF JOSEPH R. GARCIA, DECEASED, RESPONDENTS. MARCELINO GARCIA, FATHER OF JOSEPH R. GARCIA, DECEASED, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND BETHLEHEM STEEL CORPORATION, RESPONDENTS
Appeals from the Order of the Workmen's Compensation Appeal Board in the case of Pura Garcia Pichel, Administratrix of the Estate of Marcelino Garcia, father of Joseph R. Garcia, deceased v. Bethlehem Steel Corporation, No. A-74282.
Michael P. Shay, Sigmon & Ross, P.C., for petitioner, Bethlehem Steel Corporation.
Richard J. Orloski, Stamberg, Caplan & Calnan, for respondent and cross-petitioner, Marcelino R. Garcia.
President Judge Crumlish, Jr. and Judges Craig, and MacPhail, sitting as a panel of three. Opinion by Judge Craig.
[ 65 Pa. Commw. Page 60]
The estate of claimant Marcelino A. Garcia and Bethlehem Steel Corporation (employer) cross-petition for review of an order by the Workmen's Compensation Appeal Board setting aside a referee's decision which had dismissed claimant's fatal claim petition on the basis that the death of the claimant's son was intentionally self-inflicted.*fn1
[ 65 Pa. Commw. Page 61]
After finding that the claimant had been partially dependent upon his deceased son (decedent), the referee concluded that the "claimant and/or his estate"*fn2 was not entitled to compensation or burial expenses. The relevant findings are:
9. At approximately 5:50 p.m. on June 22, 1975, while on the premises of Defendant employer and during decedent's normal working hours, decedent sustained fatal injuries, including a depressed skull fracture and crushing injuries of the chest with multiple fractures, suffered as a result of falling approximately one hundred feet from the south window of the small bag house, whereupon decedent was pronounced dead at 6:32 p.m. on June 22, 1975.
10. The referee finds that the decedent, through voluntary act, purposely and intentionally jumped or fell from the south window of the small bag house, thereby sustaining fatal injuries, based on the following facts found by the referee:
(a) Decedent's work station was not in the small bag house and decedent had no occupational reason to be in said location on June 22, 1975,
[ 65 Pa. Commw. Page 62]
(b) Claimant's manner and attitude was different in the month next preceding his death in that he was unusually quiet,
(c) on June 22, 1975, shortly before his fall, decedent's skin coloration was pale and he appeared to be short of breath.
(d) Decedent climbed a railing 42 inches in height and crossed over an opening or a gap 27 inches in width and approximately 13 feet in depth to reach the south windowsill of the small bag house, a condition precedent making it extremely improbable for the decedent to have accidentally fallen from said windowsill,
(e) decedent's apparent downward exit being head first,
(f) decedent's helmet and gloves being dropped or thrown from said small bag house window prior to decedent's fall
(g) decedent's pre-existing deteriorating physical condition, and
(h) no evidence of negligent or criminal activity by another or others to cause said incident.
To rebut the presumption against suicide, the employer must demonstrate by a preponderance of the evidence that death was intentionally self-inflicted. Wellinger v. Brackenridge Borough, 149 Pa. Superior Ct. 394, 27 A.2d 716 (1942); Ewing v. Alan Wood Steel Co., 138 Pa. Superior Ct. 519, 12 A.2d 121 (1940).
Here, the referee formally concluded that the proofs more than met that standard; he held that "[d]efendant proved by clear and convincing evidence that decedent's injury and resulting death on 6/22/75 was intentionally self-inflicted within the meaning of Section 301 (a) of the Act."
[ 65 Pa. Commw. Page 63]
The board affirmed the referee's finding that the claimant had been only partially dependent upon the decedent, and, without taking additional evidence, substituted its own finding on the issue of suicide, stating:
10. The Referee's finding that the Decedent voluntarily, purposely and intentionally jumped or fell thereby sustaining fatal injuries equally permit an inference of accidental death as well as suicide.
The board then listed the same eight sub-findings that the referee had set forth, and awarded compensation to decedent's estate from the date of his death until the date of the claimant's death. In its discussion, the board noted that there were other facts present in the record,*fn3 not found by the referee, which "would tend to lead a fact finder to come to [a] conclusion" other than that the decedent took his own life.
Where the facts permit an inference of accidental death as well as an inference of suicide, the choice between those inferences is for the factfinder and not for the reviewing authority. Rittenberg v. Abbott Laboratories, 158 Pa. Superior Ct. 400, 45 A.2d 400 (1946); Hunter v. American Oil, 136 Pa. Superior Ct. 563, 7 A.2d 479 (1939). The referee's findings based on
[ 65 Pa. Commw. Page 64]
such an inference must be sustained unless "the evidence to the contrary is so clear, positive and credible and either uncontradicted or so indisputable in weight and amount as to justify" setting aside the decision. Brecker v. Philadelphia & Reading Coal and Iron Co., 138 Pa. Superior Ct. 421, 424, 10 A.2d 827, 828 (1940).*fn4
Although we ourselves could have reached a finding of accidental death, the referee, in his exclusive function as factfinder and arbiter of credibility, Jasper v. Workmen's Compensation Appeal Board, 58 Pa. Commonwealth Ct. 208, 427 A.2d 740 (1981), evaluated the testimony and came to a differrent conclusion. Without holding that those findings were unsupported by the record, the board emphasized other evidence as the basis for reaching its own inference and reversing.*fn5
We cannot hold as a matter of law that the evidence cited by the board fulfills the requisite standard under which the factfinder's decision may be set aside. Wellinger.
[ 65 Pa. Commw. Page 65]
Nor does the claimant's contention that the referee made erroneous evidence determinations persuade us to affirm the board. Section 422 of the Act, 77 P.S. § 834 states:
Neither the Board nor any of its members, nor any referee shall be bound by the common law or statutory rules of evidence in conducting any hearing or investigation, but all findings of fact shall be based upon sufficient competent evidence to justify same.
Our examination of the record indicates that the referee properly exercised his discretion with respect to the weight, credibility and admissibility of the evidence presented to him.
Because we reverse the board and reinstate the referee's decision denying benefits to the claimant, we need not reach the claimant's contention that he was wholly dependent upon the decedent, nor the employer's challenge to the board's award of counsel fees.
Now, February 26, 1982, the order of the Workmen's Compensation Appeal Board, dated November 16, 1980, No. A-74282, is reversed, and the order of the referee, dated November 4, 1977, No. F.C. 064-01-0665, denying benefits to the claimant, is reinstated.
Reversed. Benefits denied.