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PENNSYLVANIA STATE ORAL SCHOOL v. WORKMEN'S COMPENSATION APPEAL BOARD (GEREK (05/09/84)

decided: May 9, 1984.

PENNSYLVANIA STATE ORAL SCHOOL, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (GEREK, W/O MICHAEL), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Elizabeth Gerek w/o Michael v. Pa. State Oral School, No. A-81719.

COUNSEL

William C. Steppacher, for petitioner.

Paul A. Barrett, Nogi, O'Malley, Harris & Schneider, P.C., for respondent, Elizabeth Gerek, widow of Michael Gerek.

Judges Williams, Jr., Barry and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 82 Pa. Commw. Page 324]

Pennsylvania State Oral School (Employer) appeals here an order of the Workmen's Compensation Appeal Board (Board) which reversed a referee's disallowance of compensation and remanded for determination of benefits due for the work-related death of Michael Gerek payable to his widow, Elizabeth Gerek (Claimant), on her behalf and on behalf of their five children, all of whom were dependent upon decedent for their support at the time of his death. We will affirm.

We are aware, of course, as was the Board, that a compensation referee is the ultimate trier of factual issues, Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973); that a referee's findings may not be disregarded by the Board or by this Court except when such findings are not supported by the evidence; and that where the referee's findings are against the party having the burden of proof, appellate review is limited to determining whether the referee capriciously disregarded competent evidence in reaching his factual conclusions. Miller v. Workmen's Compensation Appeal Board, 67 Pa. Commonwealth Ct. 493, 447 A.2d 721 (1982); Killian v. Workmen's Compensation Appeal Board, 62 Pa. Commonwealth Ct. 29, 434 A.2d 906 (1981).

[ 82 Pa. Commw. Page 325]

Nevertheless our review of the record in this case, in light of the statements of the referee in his decision, leads us to conclude that (1) he misconceived the legal and factual nature of the hypothetical question put to Claimant's medical witness and his role as referee with regard thereto, and (2) he misconstrued the testimony in support of Claimant's burden to show that her deceased husband's death was work-related. The result is that the referee's factual determinations, based on erroneous legal conclusions, are in capricious disregard of the uncontradicted evidence.

We agree with the Board that the foundation for the referee's finding that "the decedent's death was not caused by or related to his employment" is contained in his "DISCUSSION" as follows:

The claimant's medical witness was asked to assume that the temperature was particularly hot, or very hot, and that the boiler room was five to 10 degrees in excess of the normal; that more than one boiler was in operation; and that he removed ashes from the boiler. The witness also assumed that this was an acute coronary thrombosis resulting from excessive labor. These assumptions are not supported by the record. Therefore, the doctor's opinion is incompetent*fn1 to prove a causal connection. (Footnote added.)

[ 82 Pa. Commw. Page 326]

The assumptions referred to in this quote are the ones contained in the hypothetical question put by Claimant to her medical witness, Dr. ...


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