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decided: March 17, 1989.


Appeal from the order of the Workmen's Compensation Appeal Board in the case of Mary Caffrey v. Good Shepherd Workshop, No. A-93808.


John P. Thomas, for appellant.

Martin J. Karess, Karess & Reich, for respondent Mary Caffrey.

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

Author: Craig

[ 124 Pa. Commw. Page 263]

Good Shepherd Workshop, the employer, and its workers' compensation insurer appeal from an order of the Workmen's Compensation Appeal Board that affirmed a decision of a referee determining that claimant Mary Caffrey was entitled to workers' compensation benefits in connection with an injury that she sustained at her place of employment.

In view of our scope of review,*fn1 we may state the issues as follows: (1) whether the board committed error of law by supplying on its own a necessary finding of fact not made by the referee, in order to affirm the referee's conclusion that the head injury that the claimant suffered at work was work-related, and (2) whether the referee's finding that the head injury caused the later uncontrollable seizures suffered by the claimant, and hence her disability, was supported by substantial evidence.

[ 124 Pa. Commw. Page 264]

In broad outline, the facts are not in dispute, although the parties differ greatly as to certain details and their legal effects. The claimant is an adult who previously had been diagnosed as having cerebral damage from the time of birth, which was attributed to non-specific prenatal injury. Her intellectual development had been characterized as retarded, but she had been in average physical health all her life, and she had never been known by family, friends or employers to exhibit seizure-like symptoms before the incident at issue here. Throughout her life the claimant attended school, cultural programs, family events and work therapy programs, and she had been an active participant in sporting events for the handicapped.

The claimant was a client employed for therapeutic purposes by Good Shepherd Workshop. She worked as an assembler and earned approximately $12.75 per week. On February 3, 1981, the claimant fell to the floor next to her work station and struck her head on the floor. The cries of co-workers alerted a supervisor in the room, and she went quickly to the claimant's work station. The supervisor found the claimant on the linoleum floor next to the table where she had been working, lying face up and bleeding from a cut on the back of her head. The supervisor testified that the claimant was unconscious but breathing when the supervisor arrived and also shaking or trembling, that the claimant shortly stopped breathing and began turning blue, and that, as the supervisor prepared to administer mouth-to-mouth resuscitation, the claimant began breathing again on her own, her natural color returned and she stopped shaking.

The program manager was summoned from his office down the hall from the workroom. He testified that he arrived within a matter of minutes, that the claimant was making no breath sounds when he arrived, and that her

[ 124 Pa. Commw. Page 265]

    face was pale but changed to blue in a matter of seconds. He said that the claimant started to whimper, that she was not shaking at that time, and that she started to breath on her own as he prepared to administer resuscitation. Ambulance personnel removed the claimant from the premises in about ten minutes.

At the Allentown and Sacred Heart Hospital, where she was taken for treatment, the claimant was awake and alert, and she responded appropriately to simple questions, although she was quite withdrawn. While the laceration on her head was being sutured, the claimant had a "focal" seizure, involving rapid jerking movements of the right side of her body, beginning with her arm and spreading to her leg and finally her face. The claimant became unresponsive after this episode, and she had another similar seizure roughly an hour later.

Four or five weeks after the incident at work the claimant began suffering from "drop attacks," brief seizures in which she lost control, coherence and consciousness for about seven or eight seconds. These attacks increased in frequency until they occurred at a rate of approximately twelve times per hour. After two brain surgeries in early and late 1983 at a hospital at Dartmouth University in New Hampshire, including a corpus callosum section, the claimant's condition has improved to the extent that the attacks now occur three to five times an hour and last for about ...

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