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NATIONAL MINERALS AND NORTH RIVER INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (BERNARD THOMAS) (04/28/83)

decided: April 28, 1983.

NATIONAL MINERALS AND NORTH RIVER INSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BERNARD THOMAS), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Bernard Thomas v. National Minerals, No. A-81068.

COUNSEL

Francis E. Pipak, Jr., Meyer, Darragh, Buckler, Bebenek & Eck, for petitioners.

Jay Y. Rubin, for respondents.

President Judge Crumlish, Jr. and Judges MacPhail and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 73 Pa. Commw. Page 640]

National Minerals and its insurance carrier, the North River Insurance Company (Petitioners), appeal here from an opinion and order of the Workmen's Compensation Appeal Board (Board) affirming a referee's dismissal of their petition to set aside a notice of compensation payable. We reverse and remand.

Bernard Thomas, an employee of National Minerals, was injured on September 22, 1979, when a tractor trailer he was driving jacknifed on a road in Virginia. Since Mr. Thomas was disabled by injuries he sustained in this accident, Petitioners began to pay him total disability benefits pursuant to a notice of compensation payable dated October 22, 1979. On March 10, 1980, however, Petitioners filed a petition to set aside this notice of compensation payable alleging therein that Mr. Thomas was disqualified from receiving benefits by the provisions of Section 301(a) of

[ 73 Pa. Commw. Page 641]

The Pennsylvania Workmen's Compensation Act (Act),*fn1 77 P.S. ยง 431, since his accident resulted from his driving while intoxicated, a misdemeanor under the applicable Virginia statutory law. At a hearing on this petition, conducted on January 21, 1981, Mr. Thomas testified (1) that he had not consumed any alcoholic beverages on the day of the accident and (2) that his accident resulted from the evasive actions he had to take when a pickup truck unexpectedly pulled in front of him causing him to pull off the right side of the road where there was a ten or twelve inch drop off. Petitioners, for their part, (1) offered into evidence a hospital report which stated that Mr. Thomas had a .265 blood alcohol content when he was examined at the hospital immediately after his accident, and (2) offered into evidence the deposition of a Dr. Charles L. Winek, a toxicologist, who testified, inter alia, that to a reasonable degree of medical certainty, Mr. Thomas' accident resulted from his driving while intoxicated. After evaluating the evidence adduced at the hearings before him, the referee made, amongst others, the following three findings of fact:

8. The only evidence presented by the [petitioners] was the testimony of Doctor Charles L. Winek, a Toxicologist, who did not examine the claimant or make any inquiries regarding the validity of the blood alcohol reported in the hospital records.

9. The claimant was at the time of his vehicle accident and injury under the influence of alcohol.

[ 73 Pa. Commw. Page 64210]

. No competent evidence was offered that the operation of the vehicle under the influence of alcohol caused the accident which occurred in ...


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