Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Thomas D. Riehl v. Montgomery County Sheriff's Office, No. A-993714.
Robert P. DiDomenicis, Ingersoll and Fay, for petitioner.
James R. Lynch, Jr., Gultanoff & Lynch, P.C., for respondents.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.
Before us for review is an appeal by the Montgomery County Sheriff's Department (Employer) from a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of benefits to Thomas D. Riehl (Claimant). For the reasons set forth herein, we affirm.
Claimant's testimony before the referee is summarized as follows. On June 11, 1983, Claimant was employed as a deputy sheriff for Employer. His job responsibilities included maintaining courtroom security, transporting prisoners, service of papers and the ability to act and restrain prisoners when necessary. In March 1983, Employer issued to Claimant a .357 Magnum, six bullets and a pancake holster. Claimant was required to carry the weapon with him while on duty and was also required to maintain the weapon which was subject to unannounced inspections. In May 1983, Claimant was injured in an automobile accident unrelated to his employment. This accident required him to take a leave of absence from work. On Friday, June 10, 1983, Claimant telephoned his supervisor and advised him that he would be returning to work on Monday, June 13, 1983 or Wednesday, June 15, 1983.
On Saturday, June 11, 1983, Claimant was cleaning his gun while sitting at the kitchen table in his apartment. Claimant testified that he was cleaning his weapon because he believed it would be subject to an unannounced inspection upon his return to work. Claimant further testified that it was not possible to clean his weapon at work because he never knew if or when he would have the time to clean his gun and Employer did not set aside any specific time or place during which the weapon could be cleaned.
After he had finished cleaning his weapon, Claimant stood up from the table but because the chair in which he was sitting was entangled in a throw rug he fell backwards into the refrigerator.*fn1 As he was falling backwards, the gun discharged into his left arm. Claimant was admitted to the hospital for this injury and on June 21, 1983, surgery was performed on his injured arm. He continued to receive treatment as a result of this injury until July 14, 1985. However, on March 18, 1985, he was able to return to work.
At the hearing before the referee, Claimant also presented the testimony of George Lepore who qualified as an expert in ballistics and the projectory and handling of weapons. According to Mr. Lepore, his measurements of Claimant's kitchen found it to be 10'5" long by 8'7" wide. However, due to area occupied by the kitchen cabinets, sink, stove and refrigerator, the actual usable or walkable space was a 6'9" wide area. Mr. Lepore corroborated Claimant by testifying that he believed the gun was fired from some place between the entranceway to the kitchen and the refrigerator or cabinet area.*fn2 Mr. Lepore stated
that he based his opinion upon the resting place of the expended slug. Mr. Lepore further testified that the gun could not have been ...