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JOHN F. WHELAN v. WORKMEN'S COMPENSATION APPEAL BOARD (F.H. SPARKS CO. PA. (10/13/87)

decided: October 13, 1987.

JOHN F. WHELAN, DECEASED, GENEVIEVE WHELAN, WIDOW, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (F.H. SPARKS CO. OF PA., INC.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of John F. Whelan, Deceased, Genevieve Whelan, Widow v. F.H. Sparks Co. of Pa., Inc., No. A-90564.

COUNSEL

Louis Kattelman, for petitioner.

Louis P. Lombardi, Dougherty & Stonelake, for respondent.

Judges Craig and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 110 Pa. Commw. Page 243]

Claimant Genevieve Whelan, the widow of John F. Whelan, appeals from an order of the Workmen's Compensation Appeal Board that affirmed a referee's decision and denied her claim for benefits with respect to the death of her husband.

The threshold question is whether the claimant met her burden of proof to establish an injury arising out of the decedent's work. If such an injury is established, then the next question is whether the claimant's evidence proved a causal relationship between the injury and the decedent's death.

The decedent was employed by F.H. Sparks Co. of Pennsylvania, Inc., a company specializing in ornamental and monumental erection walls. On Wednesday, February 2, 1983, the decedent worked a full day in his capacity as general foreman of a job that the company was doing on a commuter tunnel in Philadelphia. He stayed home from work on the following two days, and he died suddenly at his home late in the evening of Friday, February 4, 1983. No autopsy was performed.

A co-worker testified in the hearing before the referee that on the morning of February 2, the decedent lifted one end of a heavy steel member, called a mullion, by himself, and roughly an hour later told the co-worker that he did not feel good. The decedent's brother, who was working with the decedent on the day of the alleged incident, and the decedent's immediate supervisor, who

[ 110 Pa. Commw. Page 244]

    spoke with him about an hour after the co-worker said the injury occurred, both witnesses for the claimant, testified that the decedent said nothing to them about any injury or lifting incident. The decedent had reported various work injuries in years past when they occurred.

In a worker's compensation claim petition, the burden is on the claimant to prove all of the elements necessary to sustain an award. Bullock v. Building Maintenance, Inc., 6 Pa. Commonwealth Ct. 539, 297 A.2d 520 (1972). In this case, that burden requires the claimant to prove, first, an injury arising in the course of employment, and, second, a causal relationship between the injury at work and the decedent's death two days later. Workmen's Compensation Appeal Board v. Jeddo Highland Coal Co., 19 Pa. Commonwealth Ct. 90, 338 A.2d 744 (1975).

Our scope of review on appeal of an administrative agency adjudication, regardless of which party prevailed below, is limited to determining whether there has been a constitutional violation or an error of law and whether the findings of fact are supported by substantial evidence. Estate of ...


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