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GLOBE LINING v. WORKMEN'S COMPENSATION APPEAL BOARD (JOHNSON) (11/10/88)

decided: November 10, 1988.

GLOBE LINING, INC. AND MARYLAND CASUALTY COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (JOHNSON), RESPONDENTS. FREDERICK JOHNSON, SR., DECEASED, EVELYN JOHNSON, WIDOW, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (GLOBE LINING, INC.), RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board, in the case of Frederick Johnson, Sr., Dec'd. Evelyn Johnson, Widow and Sandra Gray (Parent & Natural Guardian of Qiana Shantel Gray) v. Globe Lining, Inc., No. A-92330.

COUNSEL

Thomas C. Lowry, Swartz, Campbell & Detweiler, for petitioners, Globe Lining, Inc. and Maryland Casualty Company.

Mark A. Verlin, Astor, Weiss & Newman, for respondent Gray.

Michael S. Durst, Mozenter, Molloy and Durst, for respondent Johnson.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. Judge MacPhail did not participate in the decision in this case.

Author: Doyle

[ 121 Pa. Commw. Page 69]

Before us are cross appeals, one filed by Globe Lining, Inc. (Employer) and its insurer, and one filed by Evelyn Johnson (Claimant), widow of Frederick Johnson, Sr., (Decedent) from an order of the Workmen's Compensation Appeal Board which affirmed a referee's decision insofar as it granted benefits to two of Decedent's children and reversed the decision insofar as it awarded compensation to Claimant.

The referee found that Decedent was involved in construction work for the City of Philadelphia at and

[ 121 Pa. Commw. Page 70]

    near a water reservoir and that the purpose of Employer's business there was installing a rubber liner and roof over said reservoir. While Decedent, upon his arrival at work, was attempting to park his automobile in an area designated for employee parking by Employer, his brakes failed and caused his vehicle to fall into the reservoir with Decedent in it. In attempting to get out of the reservoir Decedent, who could not swim, drowned. Further, the referee specifically found that evidence submitted by Employer, in an attempt to prove that Decedent's drowning was caused by a third party's tampering with his car's brakes, was grossly insufficient and inadequate in that regard.

At the time of his death, Decedent had been married to Claimant. Claimant and Decedent, however, had been separated for several years prior to his death. Decedent was survived by Claimant and by a minor son, Frederick, Jr., who was living with Claimant. Decedent was also survived by an illegitimate minor daughter. The referee concluded that Decedent's death occurred within the scope of his employment and was causally related thereto, and that he had substantially contributed to the support of Claimant. He thus determined that Claimant had met her burden to prove entitlement to benefits both on her own behalf and on behalf of Decedent's minor son. He also concluded that the mother of Decedent's illegitimate child had established the right of that child to receive compensation as well.

Employer appealed to the Board which, while upholding the grant of benefits to the children, determined that Claimant's evidence was insufficient as a matter of law to establish that at the time of Decedent's death Claimant had been dependent upon him for a substantial portion of her own ...


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