Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Albert J. Brophy, Deceased, Elsie Brophy Elinsky, Widow v. Gulf Research & Development Company, No. A-91655.
Leo P. Hajdukiewicz, for petitioner.
Edward K. Dixon, with him, Thomas C. Baumann, Herrington and Associates.
Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Judge Barry did not participate in the decision in this case.
[ 116 Pa. Commw. Page 52]
This is a petition to review an order of the Workmen's Compensation Appeal Board (Board) denying fatal claim benefits to Elsie Brophy Elinsky, widow of Albert J. Brophy, decedent. We reverse.
On October 12, 1977, Albert J. Brophy died in a fatal car accident on the Pennsylvania Turnpike. His widow, Elsie Brophy Elinsky, filed a fatal claim petition contending that the decedent sustained a work-related injury which resulted in his death.
At the time of his death, decedent had been employed by Gulf Research & Development Company (Gulf) for about twenty-one years. He was a senior project chemist and had presented a paper which he had prepared for a seminar that day. He had attended the seminar from early in the morning of October 12, 1977, until the end of the seminar, which was sometime after 5:00 p.m. The seminar was attended by the employees of Gulf.
A social hour followed the seminar from 6:00 p.m. to 7:00 p.m., during which both alcoholic and nonalcoholic drinks were supplied. After this, dinner was served. The record shows that decedent had been observed drinking an alcoholic beverage during the social hour. A witness who had been with the decedent and observed him during the evening shortly before the accident saw
[ 116 Pa. Commw. Page 53]
nothing which would indicate that the decedent was intoxicated. Another witness, who was driving on the turnpike, stated that shortly before the accident he noticed the decedent's car coming close to his car, but then the decedent's car returned to its own lane of travel, and after it passed the witness' automobile, it returned to the right lane.
The referee found that decedent had worked about fourteen hours the day of the seminar. The referee also found that the blood sample that was taken from the decedent was not taken until approximately 12:20 a.m., almost two hours after the accident occurred, and that the actual testing did not take place until much later. The sample was determined to have a blood alcohol concentration of 297 milligrams of ethanol per desolator or .291 percent by weight.
Dr. Charles L. Winek, the chief toxicologist for the Allegheny County Coroner's office, testified for the employer. Dr. Winek testified that an individual with a blood alcohol reading of .291 percent is intoxicated and would be driving while under the influence of ...