NO. 25 EASTERN DISTRICT APPEAL DOCKET, 1983, Appeal from the Order of Commonwealth Court of February 26, 1982 at 3002 C.D., 1980 and 3083 C.D., 1980 reversing the Order and Award of the Workmen's Compensation Appeal Board of November 6, 1980, 65 Pa. Commonwealth Ct. 59,
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Larsen, J., files a dissenting opinion in which Roberts, C.j., and Zappala, J., join.
The estate of claimant Marcelino Garcia appealed to this Court from a February 26, 1982 Commonwealth Court order reversing a November 16, 1982 order of the Workmen's Compensation Appeal Board. The Board had set aside a November 7, 1977 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. Because the Board erred in substituting its own resolution of the competing inferences from the evidence in this case to find an ultimate fact contrary to the factfinding of the referee, the only legitimate factfinder, see Page's Department Store v. Velardi, 464 Pa. 276, 282, 346 A.2d 556, 559 (1975); Universal Cyclops Steel Corp. v. Workmen's Compensation Appeal Board, 9 Pa. Commonwealth Ct. 176, 182, 305 A.2d 757, 761 (1973), we affirm Commonwealth Court.
Mr. Marcelino Garcia, the father of the decedent, filed a fatal claim petition with the Bureau of Workmen's Compensation.*fn1 The claimant lived at his home with Joseph Garcia and claimed benefits as a dependent of his son. Bethlehem
denied liability for compensation on its assertion that the decedent's death was "the result of a voluntary leap from a building." The referee dismissed the fatal claim petition, concluding that claimant was partially dependent on the decedent but that decedent's injury was "intentionally self-inflicted, within the meaning of Section 301(a) of the [Workman's Compensation] Act . . . ." 77 P.S. § 431 (Supp.1982-83). The referee found:
[T]hat 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 . . .:
(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,
(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.
Where the defense interposed by an employer to a compensation claim is that the employee committed suicide
"the burden of proof of such fact shall be upon the employer." Wellinger v. Brackenridge Borough, 149 Pa. Superior Ct. 394, 395, 27 A.2d 716, 717 (1942). This is simply a recognition of the legal "presumption" against suicide. Id., 149 Pa. Superior Ct. at 395, 27 A.2d at 717. As Judge Craig correctly stated in the Commonwealth Court's opinion in this case:
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."
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 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).
65 Pa. Commonwealth Ct. 59, 62-63, 441 A.2d 518, 519-20 (1982) (footnotes omitted).
Simply because the employer had the burden to show suicide, appellate intrusion into the factfinding process is not warranted ...