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HOLY FAMILY COLLEGE ET AL. v. WORKMEN'S COMPENSATION APPEAL BOARD (HALYNA KYCEJ) (07/20/84)

decided: July 20, 1984.

HOLY FAMILY COLLEGE ET AL., PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (HALYNA KYCEJ), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Halyna Kycej w/o Emil v. Holy Family College, No. A-81252.

COUNSEL

L. Oliver Frey, with him, Roger B. Wood and David L. Pennington, Harvey, Pennington, Herting & Renneisen, Ltd., for petitioners.

Richard Carl Smukler, for respondent, Halyna Kycej.

Judges Rogers, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 84 Pa. Commw. Page 111]

Petitioners (Holy Family College (College) and its insurer, Continental Insurance Company) appeal here from an order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's granting of death benefits to Halyna Kycej (Claimant), the widow of Emil Kycej (Decedent).

The Decedent was employed by the College as a maintenance man since 1956. After arriving at work on February 5, 1975, the Decedent, wearing heavy boots and an overcoat, walked approximately two blocks through newly fallen snow, unlocked and lifted the door to the garage, mounted and started a tractor and began moving snow. Sometime thereafter, the tractor was found up against the wall of a building with the Decedent slumped over the steering wheel unconscious. The Decedent was taken to a hospital where he was pronounced dead. The death certificate listed the cause of death as a myocardial infarction.

Claimant filed a fatal claim petition under the provisions of The Pennsylvania Workmen's Compensation Act (Act)*fn1 alleging that the Decedent sustained a work-related injury which resulted in his death. At hearings before the referee Claimant presented the deposition testimony of the Decedent's treating physician, Dr. Harman.*fn2 Based on the testimony of Claimant and Dr. Harman, the referee found that the Decedent had sustained a work-related injury and awarded death benefits to Claimant.

On appeal by Petitioners, the Board concluded (1) that the referee's finding of a causal relationship between the Decedent's work and his heart attack was not supported by unequivocal medical testimony and

[ 84 Pa. Commw. Page 112]

(2) that a remand was required to allow both the referee and Claimant the opportunity to "meet the sterner judicial standard, made more evidently a requirement by the decision in Rosenberry."*fn3

On remand, Claimant presented the testimony of its medical expert, Dr. Harman. Petitioners offered no new evidence. In his second decision the referee again found that the Decedent sustained a work-related injury and awarded death benefits to Claimant. On appeal the Board took no additional evidence and affirmed the referee's decision.

Before this Court Petitioners contend: (1) that under the circumstances of this case the Board erred in remanding to the referee; (2) that the referee relied on an improper hypothetical question posed to Claimant's medical expert; and (3) that the referee's finding that a causal relationship existed between the ...


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