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DICK'S DELICATESSEN PAOLI v. WORKMEN'S COMPENSATION APPEAL BOARD (DEVIRGILIO) (05/16/84)

decided: May 16, 1984.

DICK'S DELICATESSEN OF PAOLI, INC., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (DEVIRGILIO), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Richard J. DeVirgilio v. Dick's Delicatessen of Paoli, Inc., No. A-81789.

COUNSEL

David J. Rosenberg, with him, Gary A. Hurwitz, for petitioner.

Richard L. Cantor, Lentz, Riley, Cantor, Kilgore & Massey, Ltd., for respondent.

Judges Craig, Barry and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 82 Pa. Commw. Page 445]

Dick's Delicatessen of Paoli, Inc. appeals an order of the Workmen's Compensation Appeal Board affirming a referee's award of benefits to Richard DeVirgilio.

[ 82 Pa. Commw. Page 446]

We must determine*fn1 whether the board correctly concluded that the claimant's disability was work-related and that he provided adequate notice to the employer and the workmen's compensation insurance carrier as required by The Pennsylvania Workmen's Compensation Act.*fn2

In 1976, Mr. DeVirgilio was the president, chairman of the board and 60% shareholder of the family-owned delicatessen business. His wife and children owned the remaining shares and held the other corporate offices and seats on the board. Mr. DeVirgilio acted as manager of the business which consisted of the operation of a restaurant and retail sales of various gourmet foods.

On December 22, 1976, the restaurant and store were exceptionally busy because of the holiday season. Mr. DeVirgilio testified that he carried several heavy baskets of fruit up a flight of stairs from the basement of the restaurant immediately after having a "heated argument" with an employee about the handling of a customer. Shortly thereafter, Mr. DeVirgilio told one of his sons, who was working with him in the store, "I think I am having a heart attack. You'd better take me to the hospital."

The son drove Mr. DeVirgilio to Paoli Memorial Hospital where the doctors admitted him to the intensive care unit. He had significantly elevated blood pressure and was having frequent premature ventricular contractions with loss of blood to the brain. The doctors diagnosed his condition as a stroke. Mr. DeVirgilio's

[ 82 Pa. Commw. Page 447]

    medical history revealed no heart disease or other illnesses requiring the attention of a physician within ...


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