Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Theresa Weaver w/o David v. Ribstone Silos of Pennsylvania, No. A-84711.
David B. Keeffe, with him, Emy L. Franz, DeSisti and Keeffe, P.C., for petitioner.
J. W. Schmitthenner, Epstein, Schmitthenner and Downs, for respondent, Ribstone Silos of Pennsylvania.
Judges Rogers, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Rogers.
[ 90 Pa. Commw. Page 263]
Theresa Weaver (claimant), widow of David W. Weaver (decedent), has filed a petition for review of an order of the Workmen's Compensation Appeal Board (board) overturning a referee's award of compensation to her and her children.
The decedent, who drowned on August 8, 1980, was employed as a laborer by an enterprise which built silos. The referee found on substantial evidence that on August 8, 1980, a hot day, the decedent and other workers left the place where they were building a silo and, in the employer's truck, went first to lunch and, after returning to the workplace for a short time, then drove to the banks of the Susquehanna River, where they walked into the stream on a ledge to a place halfway across the river where some of them swam. The decedent did not know how to swim but he walked into the river with the others. He either stepped or dived off the ledge into deep water. He called for help but could not be saved.
On February 16, 1981, the claimant filed a fatal claim petition. After hearings, the referee issued a decision in which he made the following pertinent findings of fact:
9. John Gelwicks, the proprietor of Ribstone Silos, testified that while the decedent was employed with his company, he worked both inside the plant on a regular hourly pay basis and that he also worked on outside crews erecting silos. When working on the outside construction crews, he was not paid, nor were any of the men paid on an hourly basis. Instead, they were paid upon the rate of completion of the silo. There was a certain allotted amount of time in which to erect the silo, and the men were not required to work a certain number of hours each day as long as the silo
[ 90 Pa. Commw. Page 264]
was completed in the allotted time. It was not uncommon, stated Mr. Gelwicks, for the men to take breaks or to leave the job site for lunch and he was aware that on occasion, his employees would go swimming, but he was not in favor of it and openly expressed his dissatisfaction.
13. The referee finds based upon all the circumstances that the decedent, David W. Weaver, was in the scope of his employment at the time of his death and acting in the furtherance of his employer's interest. The decedent's work schedule was such that he did not have to punch a time clock while he was on the job and there was no strict regulation on how much time the men worked as long as the silo was constructed in the allotted period. It was not unusual for the work crews to take breaks from their employment at which time they either rested or if there was a place to swim, they took advantage of it.
14. The referee finds that on August 8, 1980, the claimant [sic] and his co-workers had gone to lunch and that shortly after lunch, because of the heat, they decided to go swimming; however, it was their intention to return to the job after swimming and do additional work. Bearing that in mind, the Referee finds that the claimant [sic] did not deviate from his employment in any way that would be detrimental to the employer and that such ...