Alcoa v. Commonwealth

410 A.2d 945, 49 Pa. Commw. 152, 1980 Pa. Commw. LEXIS 1099
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 1, 1980
DocketAppeal, No. 138 C.D. 1979
StatusPublished
Cited by7 cases

This text of 410 A.2d 945 (Alcoa v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alcoa v. Commonwealth, 410 A.2d 945, 49 Pa. Commw. 152, 1980 Pa. Commw. LEXIS 1099 (Pa. Ct. App. 1980).

Opinion

Opinion by

Judge Craig,

Alcoa (employer) appeals from a decision and order of the Workmen’s Compensation Appeal Board (board) affirming the referee’s grant of benefits to claimant, wife of decedent Floyd Huber.

[154]*154Decedent, 52 years old, had been employed by Alcoa for 29 years. He last worked on August 10-11, 1976, the 11:00 p.m. to 7:00 a.m. shift, when, as the testimony establishes, decedent worked as part of the stretcher-saw-finisher crew, racking various weights and lengths of aluminum. At the crew’s 4:30 a.m. break, decedent complained that his shoulder was hurting him badly; after that break, decedent performed only paper work for the remainder of the shift.

Claimant testified that decedent, complaining of pain across his shoulders and numbness in his arm, went to the doctor around 5:00 p.m. on August 11, and returned home with medication for arthritis. Claimant testified that during the next days, decedent’s condition deteriorated: decedent developed a cough, felt wet and clammy, had trouble breathing, couldn’t sleep, and continued to experience shoulder pain. On August 16th, decedent’s increased symptomology prompted claimant to call a different doctor, who admitted decedent to the hospital. Decedent died one-and-a-half hours after admission.

Where the board has affirmed the award of the referee granting benefits, our scope of review is limited to a determination of whether there is substantial competent evidence to support any necessary findings of fact and whether the board and referee have committed an error of law. Workmen’s Compensation Appeal Board v. Auto Express, Inc., 21 Pa. Commonwealth Ct. 559, 561, 346 A.2d 829, 831 (1975).

Employer first asserts that the board erred in failing to remand the case to the referee where the referee did not make a specific finding with regard to the exact nature of the work decedent was engaged in on his last work shift.

In a heart attack claim, claimant must show that: (1) the heart attack arose in the course of decedent’s [155]*155employment, and (2) that it was causally connected with his work. Workmen’s Compensation Appeal Board v. Bowen, 26 Pa. Commonwealth Ct. 593, 364 A.2d 1387 (1976); Workmen’s Compensation Appeal Board v. Jeddo Highland Coal Co., 19 Pa. Commonwealth Ct. 90, 338 A.2d 744 (1975).

Although the referee’s findings are not stated as specifically as we might like, the cumulative findings of the referee enable us to exercise appellate review sufficiently to conclude that the referee did make the necessary findings that decedent’s heart attack arose in the course of his employment. The pertinent findings are that:

3. There is substantial evidence that the claimant did, in fact, suffer a myocardial infarction. This was testified to directly by the medical witness presented by the claimant. This witness, Dr. Munier, never saw the decedent in his lifetime, but he expressed the opinion on hearing the testimony and a hypothetical question put to him, that the decedent died of a pulmonary edema which is a direct result of myocardial infarction.
5. We accept as credible and find as a fact, as testified to by claimant’s medical witness, that Floyd Huber’s injury, i.e., the myocardial infarction, was related to his work.
6. Daniel Lescavage, a co-worker, said that, after the ‘racking’ was done, about four thirty a.m. or five a.m., the decedent complained of pain in his shoulder.
10. Claimant’s decedent suffered a work injury in the form of a myocardial infarction while in the course of his employment and re[156]*156lated thereto while working for the self-insured employer on August 11,1976.

Testimony from Daniel Lescavage, decedent’s coworker, substantially supports the referee’s sixth finding, that it was after the “racking” that decedent began to complain of pain across his shoulder. Lescavage testified that decedent was a finisher on the shift in question and that finishers participate in racking aluminum on every shift.

Claimant’s medical expert testified that decedent died of pulmonary edema which was the result of a myocardial infarction suffered on his last night of work. On direct questioning, claimant’s expert stated unequivocally that:

A. In my opinion the work while at his regular job involved lifting of materials, activities like that weighing up to 140 pounds, would suddenly precipitate a heart attack.
Q. And is it your opinion that that activity produced the infarction in this instance?
A. Yes.

Claimant has shown sufficient cáusal connection between the occurrence of decedent’s heart attack and working duties to establish that the dealth was related to decedent’s employment.

Employer also appeals the decision of the referee and the board on the ground that claimant’s expert medical witness’ testimony was elicited on the basis of an improperly framed hypothetical question.

Employer objected to that part of the hypothetical which assumed that decedent assisted in “lifting aluminum”, alleging that the evidence proves that the racking process requires only the lowering of aluminum pieces from a conveyor onto the rack. However, claimant’s witness, a co-worker, testifying to the nature of the activities performed in the stretcher-saw-finisher process, did use the term “lift[157]*157ing. ’ ’ And a careful reading of the testimony of both claimant’s and employer’s witnesses, makes clear that, whether the racking process actually entailed “lifting” or “lowering”, the process definitely necessitated supporting and sustaining various weights of aluminum so that “lifting” was not an inappropriate term.

Further, employer alleges that another portion of the hypothetical question, which stated that decedent racked pieces which “weighed up to approximately 140 pounds together with two other men” and that in the course of the work shift, the crew racked “50,000 pounds” of aluminum, is error. Employer asserts that the quantity elements of the hypothetical were posed in such a way as to convey the idea that decedent was single-handedly moving such great quantities.

A review of the testimony, especially that of decedent’s co-worker, established — as the referee ruled at the time — that the facts expressed in claimant’s hypothetical were in evidence. Although, as employer points out, the witness on cross-examination made seemingly contradictory statements, questions of credibility and choices between conflicting testimony, including questions which arise from a witness’ inconsistent testimony, are ultimately for the referee, not this court. American Refrigerator Equipment Co. v. Workmen’s Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 595, 377 A.2d 1007, 1010 (1977); Workmen’s Compensation Appeal Board v. Quick, 25 Pa. Commonwealth Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
410 A.2d 945, 49 Pa. Commw. 152, 1980 Pa. Commw. LEXIS 1099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alcoa-v-commonwealth-pacommwct-1980.