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BURKE-PARSONS BOWLBY CORP. AND U.S.F. & G. INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (DARLENE FREDERICK (02/03/84)

decided: February 3, 1984.

BURKE-PARSONS BOWLBY CORP. AND U.S.F. & G. INSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (DARLENE FREDERICK, W/O JOHN), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Darlene Frederick, Widow of John v. Burke-Parsons Bowlby Corp., No. A-80177.

COUNSEL

Raymond F. Keisling, Will and Keisling, for petitioners.

Paul J. Quattrone, for respondent, Darlene Frederick.

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

Author: Doyle

[ 80 Pa. Commw. Page 130]

Employer appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's award of compensation to decedent employee's widow and children.

On July 13, 1972, employee, John Frederick, suffered a head injury while employed as a laborer at Employer's saw mill. After the injury, employee experienced headaches, irritability, and occasional blackouts. On October 3, 1972, employee lost consciousness while driving, and was killed when his car crossed into oncoming traffic and collided with a truck. On December 7, 1973, employee's widow, Darlene Frederick (Claimant), filed a death claim with the Bureau of

[ 80 Pa. Commw. Page 131]

Workmen's Compensation,*fn1 alleging that her husband's fatal accident was caused by his work-related head injury.

A hearing was held, and on March 4, 1975, the referee entered an award in favor of Claimant. On August 28, 1975, the Board reversed and remanded for a specific finding of fact as to whether or not the fatal accident was caused by the work-related head injury. After Employer's appeal to this Court was quashed as interlocutory,*fn2 the referee entered a new award for Claimant on January 6, 1977, revising his previous findings of fact. On July 7, 1977 the Board again reversed and remanded, this time so that additional evidence could be taken as to the cause of the fatal automobile accident itself. On June 29, 1979, after hearing additional evidence, the referee concluded that causation had been established, but denied recovery on the basis of Claimant's failure to give notice. The Board reversed on the notice issue, and remanded for a determination of the amount of award. On October 7, 1980, the referee entered an award, which was affirmed by the Board on January 21, 1982. It is this order that is the subject of the present appeal.

Employer contends that Claimant did not sustain her burden of proof in establishing a causal connection between the work-related injury and the blackout, which admittedly caused the fatal accident of October 3, 1972. Employer cites testimony taken at the first hearing on July 29, 1974, in which Dr. Dennis A. Sharkey, Jr., a pathologist who performed an autopsy on the decedent employee, stated that it was "possible" that employee had suffered brain damage as a result of his work-related injury.

[ 80 Pa. Commw. Page 132]

Where there is no obvious causal connection between employee's disability and his employment, the causal connection must be established by unequivocal medical testimony. Mitchell v. Workmen's Compensation Appeal Board (Townsend & Bottum, Inc.), 73 Pa. Commonwealth Ct. 401, 458 A.2d 313 (1983). It is true that this Court has held that such a causal connection cannot be established by testimony that the disability might have been, or probably was the result of employee's employment. Philadelphia College of Osteopathic Medicine v. Workmen's Compensation Appeal Board (Lucas), 77 Pa. Commonwealth Ct. 202, 465 A.2d 132 (1983); Mitchell. We have also held, however, that not ...


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