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decided: April 27, 1982.


Appeal from the Order of the Workmen's Compensation Appeal Board in case of Anthony DeSanto, Jr. v. Interstate Carriers Cooperative, No. A-79353.


Stephen J. Harlan, Swartz, Campbell & Detweiler, for petitioner.

Joseph F. Wusinich, III, Wusinich and McCarthy, for respondent, Anthony DeSanto, Jr.

Judges Mencer, Blatt and Doyle, sitting as a panel of three. Opinion by Judge Blatt. This decision was reached prior to the resignation of Judge Mencer.

Author: Blatt

[ 66 Pa. Commw. Page 289]

Interstate Carriers Cooperative (employer) appeals a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision that Anthony DeSanto, Jr. (claimant) was totally disabled as a result of an injury he sustained in the course of his employment.

[ 66 Pa. Commw. Page 290]

The following facts determined by the referee are supported by substantial evidence*fn1 in the record. The claimant, an interstate truck driver and resident of Pennsylvania, was at his home in Pennsylvania when he accepted an over-the-telephone offer of employment made by the employer who allegedly operates out of Fort Worth, Texas. He then began hauling agricultural products for the employer primarily between the east and west coasts, and, upon his return from one of his west coast hauls and while unloading his cargo in Washington, D.C., on February 26, 1976, he was attacked by an unknown assailant and repeatedly beaten about the head, shoulder, back, ribs and arms with a steel pipe. He called his employer's dispatcher who instructed him, despite an attempt by the claimant to explain his physical condition, to pick-up immediately a load of mushrooms and to transport them to California or else he would be discharged. The claimant, fearful of losing his job, did as directed and, once in California, he saw a doctor regarding his physical condition. He subsequently told his employer that he could not work because of his injuries and that he was going to go home to rest and seek further medical attention. The employer then demanded the return of all of this claimant's interstate commerce tags.

The claimant then saw several doctors who testified before the referee that the claimant complained of blurred vision, headaches, loss of grip in his right arm [sic], and parethesia of the right arm and hand. These doctors, in giving medical testimony before the referee,

[ 66 Pa. Commw. Page 291]

    opined that the claimant was suffering from hypertension and post-traumatic concussionals, peritendonitis of the right shoulder, submicosal hyperthropy, labyrinthitis (visual and balance problems), a deviated septum, a reduction in hearing capacity, a straightening of the spine, a contusion to the lateral muscle mass in the elbow, a condition of mallet finger of the right middle finger, and a persistent pain in the base of the neck. Testimony by some of these medical witnesses unequivocally stated that these conditions were related to the February 26, 1976 attack and that the claimant would be physically unable to perform his duties in a satisfactory and safe manner.

The employer presented the testimony of Dr. Joseph Sataloff, M.D., who opined that upon examining the claimant he could find no evidence of labyrinthitis nor any evidence of a deviated septum. He further stated that it was not possible for the claimant to have sustained a deviated septum as a result of the February 26, 1976 incident. The referee, however, chose to rely on the claimant's witnesses and found the claimant to be totally disabled from April 6, 1976 to an indefinite time in the future, and the Board affirmed.

Initially the employer argues that the Board erred in finding jurisdiction entitling the claimant to benefits under the Pennsylvania Workmen's Compensation Act*fn2 when it concluded that he was "working under a contract of hire made in this State in employment not principally localized in any state. . . ." Section 305.2(a)(2) of the Act, 77 P.S. ยง 411.2(a)(2). The employer and the claimant agree in their briefs that the focus of Section 305.2(a)(2) is on the employee's employment and not on the employer. Our close examination of the record discloses, contrary ...

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