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M.D.S. LABORATORIES AND INSURANCE COMPANY NORTH AMERICA v. WORKMEN'S COMPENSATION APPEAL BOARD (MUNCHINSKI) (12/09/87)

decided: December 9, 1987.

M.D.S. LABORATORIES AND INSURANCE COMPANY OF NORTH AMERICA, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (MUNCHINSKI), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Joseph A. Munchinski, Dec'd. Mary Jane Munchinski, Widow v. M.D.S. Laboratories, No. A-91150.

COUNSEL

Raymond F. Keisling, Will, Keisling, Ganassi & McCloskey, for petitioners.

K. Lawrence Kemp, Kemp & Kemp, for respondent, Estate of Joseph A. Munchinski, Deceased.

William F. Caruthers, Caruthers & Caruthers, P.C., for claimant.

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

Author: Barbieri

[ 111 Pa. Commw. Page 542]

M.D.S. Laboratories, Employer, and Insurance Company of North America appeal here an order of the Workmen's Compensation Appeal Board (Board), which affirmed a referee's award of benefits to Mary Jane Munchinski, widow of M.D.S. Laboratories' deceased employee, Joseph A. Munchinski, and directed payment of funeral expenses and costs to the Estate of Joseph A. Munchinski. We shall affirm.

The decedent was employed by M.D.S. Laboratories as a messenger who delivered test samples and reports to clients by company automobile and picked up samples for delivery to the employer. On December 28, 1983, Decedent was en route to pick up and deliver samples in a company car when the automobile went out of control on an icy curve and skidded sideways across the road where it was struck by a truck. Decedent was thrown out of the vehicle and killed instantly. A laboratory study of a blood sample on the same day as

[ 111 Pa. Commw. Page 543]

    the accident revealed that Decedent had a blood alcohol level of .104%.*fn1

Both Decedent's widow and estate filed claims. At the time of the accident Decedent and his wife had been separated for almost a year. Decedent's widow testified that she had previously left Decedent in 1980 because of his drinking problem and obtained a court order for spousal support. In 1981, Decedent became ill with a kidney condition and his wife moved back in with Decedent to care for him until January, 1983 when she once again left due to his drinking and abuse, despite Decedent's entreaties to stay. The support order was paid until the parties reconciled in 1981. From this point on the wife made no further effort to collect support. Instead, she testified to an agreement with Decedent that as long as he would pay the mortgage and taxes on a marital property titled one-half in her two children's names and one-half as tenants by the entireties with Decedent, in which Decedent was living, she would forego support. The referee found:

TWENTY-SECOND : This Referee finds that claimant was actually dependent upon her husband for support. By stipulation between the decedent and his wife it was agreed that he could discharge his support order by paying $98.48 monthly on the home mortgage, $75.63 monthly on the second mortgage and $50 monthly on the ...


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