Borough of Morrisville v. Commonwealth

419 A.2d 813, 54 Pa. Commw. 41, 1980 Pa. Commw. LEXIS 1743
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 23, 1980
DocketAppeal, No. 1323 C.D. 1979
StatusPublished
Cited by9 cases

This text of 419 A.2d 813 (Borough of Morrisville 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
Borough of Morrisville v. Commonwealth, 419 A.2d 813, 54 Pa. Commw. 41, 1980 Pa. Commw. LEXIS 1743 (Pa. Ct. App. 1980).

Opinion

Opinion by

Judge Williams, Jr.,

This is an appeal by employer Borough of Morris-ville (Borough) from an award of widow’s benefits under Section 307 of The Pennsylvania Workmen’s [43]*43Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §561. The award was on the petition of respondent Elaine Grant (claimant), who alleged that her husband, Alvin Grant, sustained a fatal heart attack while working as a volunteer fireman for the Borough. His death occurred March 21,1971.

After the first hearing of the case, the referee denied the claim. The denial was based on the referee’s conclusion that the claimant had not met her burden of proving that her husband’s death was the result of a compensable “accident, ’ ’ within the meaning of Section 301(a) of the Act, 77 P.S. §431.1 Also, the referee totally discounted the testimony of the claimant’s medical expert because it had been given in response to a hypothetical question containing non-record facts. The referee’s decision to strike that testimony came after the hearing, during which the referee had admitted the testimony over objection.

The claimant appealed the referee’s decision to the Workmen’s Compensation Appeal Board (Board). The Board set aside the decision and remanded the case to the referee with directions to consider certain case law relative to injuries sustained by volunteer firemen. Additionally, the referee was instructed to consider the medical testimony he had discounted. The Board rightly reasoned that it was prejudicial error for the referee to reverse his ruling on the medical testimony after the hearing had ended. That deprived claimant’s counsel of the opportunity to cure any defects during the hearing itself. The Borough’s appeal from that remand order was quashed by this Court on February 4,1977.

At the remand hearing, claimant’s medical expert again testified in response to a hypothetical question [44]*44posed by claimant’s counsel. The appellant objected to the question stating that it was not supported by the record. When the referee asked him to be more specific, counsel cryptically remarked, “I will let the record speak for itself.” The referee overruled the objection.

The referee subsequently rendered a decision in favor of the claimant and consistent with the order and opinion of the Board.; the Board affirmed that decision and the instant appeal followed.

The decedent was an active member of the Morris-ville Volunteer Fire Company for a period of at least two years prior to his death. His regular occupation was that of a service station manager at the Pathmark Company and consisted of, as the referee found, “managerial and administrative duties requiring little physical exertion. ’ ’

The activities of decedent immediately proceeding his fatal heart attack consisted, of assisting the Assistant Fire Chief with a 200 foot fire hose in the course of extinguishing a small, routine brush fire. The day’s temperature was between 75 and 80 degrees; and the decedent was dressed in typical fireman’s gear consisting of a helmet, heavy coat and boots.

Minutes after his return to the firehouse, he collapsed and was subsequently pronounced dead upon arrival at the local hospital. The evidence established that the decedent’s death was caused, by acute coronary occlusion, secondary atherosclerosis and arteriosclerotic heart disease with generalized visceral congestion.

In contesting the award, the appellant asserts that the decedent’s fatal heart attack was not the result of an “accident,” as is required under the statute governing this claim. Specifically, the appellant raises the “unusual strain” doctrine, and contends that the decedent’s heart attack was not caused by stress or ex[45]*45ertion unusual for his duties as a volunteer fireman. Strangely, the appellant seeks support for that argument in the case of Foster v. State College Borough, 124 Pa. Superior Ct. 492, 189 A. 786 (1937). We read Foster as contravening the appellant’s position. The doctrine, as set forth in the Foster case, considers as a compensable accident, any adverse physical reaction that occurs during a work-related activity that was not the individual’s “usual, ordinary, and accustomed work. ’ ’

The language of Foster indicates that the strain inducing activity must be compared to the individual’s usual, regular or everyday work. To be considered a compensable “accident,” the activity engaged in must constitute an unusual strain in light of the individual’s work history. The determination of unusualness is not restricted to a comparison of the various duties performed by the individual only while serving as a volunteer fireman. Such a restriction is unreasonable and unfair in cases involving volunteer firemen since they normally have other full-time occupations. That is precisely why the court in Foster expressed disapproval of applying the rules of the unusual strain doctrine to an inherently irregular, intermittent and unusual employment such as that of a volunteer fireman. In cases involving volunteer firemen, the test for unusualness must include a comparison to the individual’s regular, everyday occupation.

The appellant seeks further support for his argument in the case of Hilt v. Roslyn Volunteer Fire Company, 445 Pa. 149, 281 A.2d 873 (1971). The case involved a volunteer fireman who suffered a heart attack immediately after exerting extra muscular effort to free a jammed emergency brake lever on a 20 year old, ten ton fire truck. The claimant was a carpenter by profession and served as a volunteer fireman on a part-time basis only. The Board denied the claimant [46]*46benefits on tbe basis that tbe strain was not an unusual one for the claimant. The Supreme Court in Hilt decided that the Board had applied the correct standard in denying benefits to the claimant. The standard applied was whether the strain inducing activity was unusual to the claimant’s work generally. That does not mean that the Board only considered the claimant’s activities as a volunteer fireman. There is nothing in Hilt to suggest that the claimant’s other employment as a carpenter was not considered when the Board determined whether an unusual exertion had occurred. Therefore Hilt does not contradict Foster; nor does it compel the narrow reading advanced by the Borough. We read Foster and Hilt to mean that in cases involving volunteer firemen the unusual strain doctrine is to be applied according to the total work history and employment experience of the individual, including his regular, everyday occupation.

Applying these principles to the case at hand, it follows then that the activities of the claimant on the day of his death, when compared to the sedentary nature of his everyday work, could properly be deemed to constitute an unusual strain within the meaning of the doctrine.

The additional contention raised by the appellant Borough focuses upon the manner of questioning by claimant’s counsel on direct examination of his medical expert.

The appellant argues that the testimony of claimant’s medical witness, Dr. Richard Helfant, was elicited in response to an improper hypothetical question and therefore should have been excluded.

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Bluebook (online)
419 A.2d 813, 54 Pa. Commw. 41, 1980 Pa. Commw. LEXIS 1743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borough-of-morrisville-v-commonwealth-pacommwct-1980.