Appeal from the Order of the Workmen's Compensation Appeal Board in case of James C. Oakes, Deceased, Joyce E., widow v. Pennsylvania Electric Company, No. A-82596.
John H. Bozic, Jr., Bozic, Thomas & Johnson, for petitioner.
Howard N. Plate, Plate, Shapira, Hutzelman, Berlin & May, for respondents.
Judges Rogers, Barry and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.
[ 79 Pa. Commw. Page 455]
Joyce E. Oakes, Claimant, widow of James C. Oakes, appeals here the order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision dismissing her claim petition filed on behalf of herself and three of the four children of herself and the decedent.*fn1
James C. Oakes, at the time of his death on September 17, 1977, was employed by Pennsylvania Electric Company (Company) as a line foreman, and on that date he was called upon as "duty foreman" to
[ 79 Pa. Commw. Page 456]
deal with an outage in a town served with electric power by Company. In response to this emergency he proceeded in the company car to the Meadville Office some 13.3 miles from his home. The outage was corrected by 9:00 A.M. and decedent then engaged in some non-business shopping, stopping also at some bars where he consumed alcoholic beverages. During this period, however, decedent's "duty foreman" status remained in effect in that he was subject to call on the radio with which the car was equipped or on the "pager" with which he was also provided.*fn2 At 4:00 P.M., on the road home, decedent was killed in an automobile accident. The referee found that decedent's state of intoxication was not the cause of the accident, but he also "found" that decedent was not in the course of his employment at the time of his death.
Since the determination of whether an employee is in the course of his employment at the time of injury is one of law based upon the facts in the case, Aluminum Company of America v. Workmen's Compensation Appeal Board (Lindsay), 33 Pa. Commonwealth Ct. 33, 380 A.2d 941 (1977), we must examine the referee's findings on the issue of employment in light of the record and the applicable law. The referee's relevant findings are as follows:
[ 79 Pa. Commw. Page 4578]
. The Decedent left the Defendant's Meadville Office at approximately nine a.m.
9. During the next seven hours, until approximately four p.m., the Decedent was on personal business. He purchased building materials and electrical equipment for an addition he was putting on his house. In addition thereto, he made at least six stops at various bars and consumed alcoholic beverages. These stops led him through a zigzag course in the Meadville area. At no time during ...