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GEORGE HEPP v. WORKMEN'S COMPENSATION APPEAL BOARD (B.P. OIL COMPANY) (07/08/82)

decided: July 8, 1982.

GEORGE HEPP, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (B.P. OIL COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of George Hepp v. B.P. Oil Company, No. A-78780.

COUNSEL

Brian R. Steiner, for petitioner.

Mark L. Mazzanti, with him Martin J. Fallon, Jr., Swartz, Campbell & Detweiler, for respondent, B.P. Oil Company.

President Judge Crumlish and Judges Blatt and Doyle, sitting as a panel of three. Opinion by Judge Blatt. Judge Mencer did not participate in the decision in this case.

Author: Blatt

[ 67 Pa. Commw. Page 331]

This is an appeal from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's denial of benefits to George Hepp (claimant) finding that his injury did not occur in the course of his employment.

The claimant was employed for over 20 years as a truck driver by the B.P. Oil Company (employer) and its predecessors, delivering oil and gasoline to its customers. Although not a member of the union which represented other employees, he had submitted numerous grievances to the former union shop steward, George Lynch (Lynch), and on December 23, 1977, while in the drivers' room at the employer's facility, he complained to the then newly designated union steward in Lynch's presence that "Lynch hasn't done a thing for me for two years." The claimant testified at the hearing that Lynch had then removed his glasses, advanced toward him with his fist closed, and called him an insulting name, in response to which the claimant punched Lynch once, knocking him to the ground. The claimant said that he called the dispatcher from home on the following day and got his route assignment for that day, but that he received a call from the employer fifteen minutes later, also at home, notifying him that he was discharged. The claimant's wife testified that, immediately after this call from

[ 67 Pa. Commw. Page 332]

    the employer, the claimant suffered an acute psychiatric episode which required immediate treatment and care in a hospital psychiatric unit. When the claimant sought workmen's compensation benefits for his disability, the referee concluded after a hearing that the claimant's mental condition and resultant disability did not constitute an injury in the course of employment because they did not occur on the employer's premises or while he was actually engaged in the furtherance of the employer's business. The Board affirmed the referee and this appeal followed.

In workmen's compensation cases where the party with the burden of proof did not prevail below, our scope of review is limited to determining whether or not the referee's findings are consistent with each other and with the conclusions of law and whether or not they can be sustained without a capricious disregard of competent evidence. Workmen's Compensation Appeal Board v. Precisionware, Inc., 21 Pa. Commonwealth Ct. 573, 347 A.2d 322 (1975).

The claimant contends here that several of the findings are incorrect and unsupported by evidence in the record, specifically: finding No. 4, that the claimant was the aggressor and Lynch a passive victim; finding No. 8, that the claimant suffered an anxiety neurosis following the termination of his services; and finding No. 9, that the claimant admitted that he did not sustain an injury in the December 23 altercation at the plant and that, if he had not been fired on December 24, he could have continued his employment indefinitely.

As to finding No. 4, the record is clear that the first and only blow struck in the altercation was delivered by the claimant. While Lynch's behavior may have been threatening and intimidating, it did not rise to the level of fighting and it was the ...


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