Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Kenneth R. Hemer, Sr., Deceased, Georgia M. Hemer, widow v. George Phillis and J. Miller Express, Inc., No. A-80185.
David M. McCloskey, Will & Keisling, for petitioner.
H. Reginald Belden, Jr., for respondent, J. Miller Express, Inc.
Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt.
[ 71 Pa. Commw. Page 175]
Georgia M. Hemer (claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's dismissal of her claim petition under Section 301(a) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 431, based upon her deceased husband's allegedly intoxicated condition at the time of his fatal accident.
On October 21, 1978 the decedent left Beaver County with a load of freight destined for delivery in Illinois. After delivering this freight, he was instructed
[ 71 Pa. Commw. Page 176]
by his employer to pick up an outbound load of freight in Burns Harbor, Indiana and, after doing that, he was observed by an oil tanker transport driver to be weaving his truck back and forth across the center line of the road then sweriving sharply into a ditch. The tanker driver testified that, after the accident, he observed a number of beer cans strewn about the truck cab of the wrecked vehicle which the decedent had driven. An autopsy subsequently revealed that the decedent had died as a result of a basal skull fracture with cerebral lacerations and a blood analysis revealed an alcohol or ethanol level of .24 in his blood.
The claimant contends that the employer was barred from introducing evidence of the decedent's intoxication by reason of its failure to file a timely answer to the claim petition. She relies on Yellow Freight System Inc. v. Workmen's Compensation Appeal Board, 56 Pa. Commonwealth Ct. 1, 423 A.2d 1125 (1981) wherein we held that an employer filing a belated answer, including an affirmative defense of intoxication, was barred from introducing evidence of an employee's intoxication at the time of the accident. Unlike the case at bar, however, the claimant in Yellow Freight had properly objected to the untimely filing of the answer. Here, this issue was neither raised before the referee nor before the Board, and, of course, issues not raised before the governmental unit or Commonwealth agency will not be considered for the first time by this Court unless due cause is shown. Aston Hill Manufacturing Co. v. Workmen's Compensation Appeal Board, 56 Pa. Commonwealth Ct. 20, 423 A.2d 1135 (1981). In the instant case, no such cause was shown.
The claimant also contends that the employer has not presented competent evidence to establish intoxication
[ 71 Pa. Commw. Page 177]
and has therefore failed to meet its burden of proof. Section 301(a) of the Act, 77 P.S. § 431 ...