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CITY NEW CASTLE v. WORKMEN'S COMPENSATION APPEAL BOARD (SALLIE) (07/20/88)

decided: July 20, 1988.

CITY OF NEW CASTLE, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SALLIE), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Earl A. Sallie, Deceased, Nora Lee Sallie, Widow v. City of New Castle, No. A-91682.

COUNSEL

Kemal Alexander Mericli, with him, Francis E. Pipak, Jr., and Louis C. Long, Meyer, Darragh, Buckler, Bebeneck & Eck, for petitioner.

Robert H. Isbell, with him, Charles F. Gilchrest, Routman, Moore, Goldstone & Valentino, for respondent, Earl A. Sallie, Deceased/Nora Lee Sallie, Widow.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 118 Pa. Commw. Page 52]

The City of New Castle (City) appeals here the order of the Workmen's Compensation Appeal Board (Board) which affirmed the award of fatal claim benefits rendered by Referee Marvin Luxenberg (Referee) to Nora Lee Sallie (Claimant), widow of Earl A. Sallie (Decedent), on the basis that the Decedent died as a result of a fatal disease he contracted from a co-worker while he was within the course of his employment. We affirm.

Decedent was employed as a supervisor by the City in the City's weatherization program. On June 4, 1981, at approximately 7:30 o'clock a.m., the Decedent left his home to go to work in seemingly good health. Two hours later, the Decedent returned home complaining that he did not feel well. He exhibited violent chills, an elevated body temperature, a purple mark on his left elbow and was non-responsive to stimuli.

As the day progressed the Decedent's condition worsened, and he was then transported to St. Francis Hospital at approximately 6:30 p.m. In the emergency

[ 118 Pa. Commw. Page 53]

    room, he was examined by Dr. Wadhwa, a board-certified specialist in internal medicine, who diagnosed the Decedent as suffering from meningococcal septicemia.*fn1 A blood culture of the Decedent's blood was done which later showed the presence of the organism Neisseria meningitis in the Decedent's blood.

The Decedent was then transferred to Presbyterian Hospital in Pittsburgh where he was examined by Doctors Mullen and Dixon, who diagnosed the Decedent as being meningococcic. As the night progressed, the Decedent's blood pressure fell and continued to fall until approximately 5:30 a.m. when he suffered a cardiopulmonary arrest from which he died shortly thereafter. The Decedent's death was listed as cardiopulmonary arrest caused by septic shock*fn2 which was a direct consequence of the meningococcal septis.

On June 5, 1981, throat and nasal cultures were taken from twenty-one (21) of the Decedent's fellow employees, seven of which were cultured. One employee (Co-employee) tested positive for the Neisseria organism. Co-employee was determined to be a carrier of the disease, as she was asymptomatic, i.e., having no ill effects from having the organism present in her nasal pharynx.

The Neisseria meningitis organism survives only in the nasal pharynx and is transmitted through inhalation of droplets of infected nasal pharyngeal secretions. Not every person exposed to the organism, however, is susceptible to the ill effects of the disease. Statistics show

[ 118 Pa. Commw. Page 54]

    that seventy (70) percent of the adult population who are exposed to the disease are not susceptible to its ill effects, while approximately thirty (30) percent of the population have no immunity to it, and seven to ten (7-10) percent become carriers of the disease. N.T. at 17-18, R.R. at 150A-151A.

Several days to two weeks before the Decedent died, he was observed kissing Co-employee on the cheek prior to her leaving for maternity leave. The Claimant contended that the Decedent contracted this fatal disease from Co-employee, who was a carrier of the disease, while the Decedent was at work in the course of his employment. The Referee agreed and awarded workmen's compensation benefits to Claimant. City appealed to the Board, which, without taking any additional evidence, affirmed the Referee's decision. The City now appeals to this Court for review.

First we must determine whether the Board erred in finding that the Decedent 1) suffered a compensable injury, and 2) suffered the injury while he was within the course of his employment.*fn3 Section 301(c) of The Pennsylvania Workmen's Compensation Act (Act), June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 411(1) provides in pertinent part:

The term 'injury arising in the course of his employment,' as used in this article . . . shall include all . . . injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether on the employer's premises or elsewhere, and

[ 118 Pa. Commw. Page 55]

    shall include all injuries caused by the condition of the premises . . . sustained by the employe, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer . . . the employe's presence thereon being required by the nature of his employment.

The Act sets forth that for workmen's compensation purposes, an employee will be considered to have suffered an injury arising in the course of employment where the employee is injured while actually engaged in furtherance of the employer's business or affairs. See Pypers. In Dupree v. Barney, 193 Pa. Superior Ct. 331, 341, 163 A.2d 901, 907 (1960), the court held that "[a]n employee may be doing something other than the exact work assigned to him, and he may not be strictly at his assigned work, either as to time or place, yet the continuity of the employment is not broken unless such activity is wholly foreign to his employment or constitutes an abandonment thereof." (Citation omitted.)

In Hall v. Carnegie Institute of Technology, 170 Pa. Superior Ct. 459, 87 A.2d 87 (1952), the decedent died as a result of a self-inflicted gunshot wound. The decedent was a clerk in a school chemical storeroom where his duties entailed the making of an annual inventory. The referee found that on the night in question, the decedent went to consult with a professor about supplies for the professor's lab, when he encountered one of the special policemen employed by the college in the professor's office. The officer was showing his gun to the professor who was reluctant to take it. The officer then assured her that the gun was empty by showing her the ...


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