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HARRY S. FESSLER v. WORKMEN'S COMPENSATION APPEAL BOARD (NATIONWIDE INSURANCE COMPANY) (11/28/84)

decided: November 28, 1984.

HARRY S. FESSLER, DECEASED, BY VIRGINIA LEE FESSLER, WIDOW, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (NATIONWIDE INSURANCE COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Harry S. Fessler, deceased, Virginia Lee, Widow v. Nationwide Insurance Company, No. A-84822.

COUNSEL

Elliot A. Strokoff, Handler, Gerber, Johnston, Strokoff & Cowden, for petitioner.

Thomas E. Wood, Keefer, Wood, Allen & Rahal, for respondent, Nationwide Insurance Company.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 86 Pa. Commw. Page 199]

Harry S. Fessler (Decedent) suffered a myocardial infarction and died February 10, 1976, in the course of his employment as an insurance underwriter with Nationwide Insurance Company (Employer). His widow, Virginia Lee Fessler (Claimant), filed a fatal claim petition. The matter was first heard by a referee who denied benefits in March of 1978. When the Claimant appealed, the case was remanded by the Workmen's Compensation Appeal Board (Board) for further findings in an order dated December 7, 1978. Although the referee fixed a date for a further hearing, no evidence was presented. Based upon arguments of counsel heard at that time, the referee in

[ 86 Pa. Commw. Page 200]

December of 1980 again denied benefits. When the Claimant appealed a second time, the Board again remanded by an order dated November 5, 1981. This time, additional evidence from the Employer was received by the referee who, for the third time denied benefits in a decision filed in October of 1982. Finally, on December 1, 1983, the Board affirmed the referee's denial of benefits. This appeal followed.*fn1 We reverse.

There seems to be basic agreement on some of the critical facts in this case. The Decedent died at work while in the midst of a telephone call on the Employer's business with another employee. He had complained of chest pains to the Employer's nurse the morning of his death. Her advice to him to call his physician was not heeded. Decedent had been examined for heart problems in the summer of 1974. He was under a physician's care for more than a year. He was diagnosed as having atherosclerosis and hypertension. Coronary heart disease was suspected. The doctor recommended that he refrain from working for awhile. Eventually, however, he went back to work part-time and then full time in November of 1975. He died of a heart attack or myocardial infarction.

Claimant's evidence consisted of her own testimony, testimony from the Employer's nurse, the Employer's assistant personnel manager, the Decedent's immediate supervisor and a deposition from the Decedent's treating physician, Dr. Jackson.

[ 86 Pa. Commw. Page 201]

On the basis of that evidence, the referee in 1978 made the following critical findings:

12. That Claimant failed to produce medical evidence to prove a causal relationship between decedent's death and his ...


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