Di Marcantonio v. State Workmen's Insurance Fund

15 Pa. D. & C. 56, 1931 Pa. Dist. & Cnty. Dec. LEXIS 146
CourtPennsylvania Court of Common Pleas, Delaware County
DecidedMarch 21, 1931
DocketNo. 1864
StatusPublished

This text of 15 Pa. D. & C. 56 (Di Marcantonio v. State Workmen's Insurance Fund) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Delaware County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Di Marcantonio v. State Workmen's Insurance Fund, 15 Pa. D. & C. 56, 1931 Pa. Dist. & Cnty. Dec. LEXIS 146 (Pa. Super. Ct. 1931).

Opinion

MacDade, J.,

Claimant herein has filed a petition seeking compensation in behalf of herself and minor children for the death of her husband, which occurred on Sept. 20, 1928, while employed by the employer defendant.

The cause of the accidental death is given in the petition as “seven explosions of dynamite had been set off and deceased was asphyxiated by gases and died.”

The referee after answer and hearing awarded compensation, and the defendant then appealed to the Workmen’s Compensation Board, contending that the referee’s findings of fact were not supported by the evidence and that there was error as to the conclusions of law and award.

The contention of the claimant then as now was that poisonous gases, and particularly carbon monoxide, caused the death of the decedent, which occurred in a stone quarry and during the course of his employment with the defendant.

The defendant then set up that this was not the cause of death and that there “'was no testimony to support such a finding of fact that his death was the result of an accident as provided by the Compensation Act.

However, the Workmen’s Compensation Board, in an opinion filed Jan. 30, 1930, in stating that the referee had correctly decided the case and that his findings were amply sustained by the evidence, said, inter alia: “Our exam[57]*57ination of the testimony convinces us that the claimant has met the burden of proof by showing the decedent’s death was caused by such gases.”

Prom this award we had an appeal to review the record as thus made up and as well for our consideration whether to grant a rehearing in accordance with a prayer of the defendant in a petition for a rehearing duly filed.

Therefore — to summarize — after hearing on the original petition and answer, the referee awarded compensation, finding that the decedent died as the result of carbon monoxide poison in the course of his employment with his employer on Sept. 21, 1928. The Workmen’s Compensation Board found that this finding of the referee was based on the preponderance of competent and convincing testimony in the case, and affirmed the action and award of the referee.

The case was then appealed to this court, which was of the opinion that additional testimony should be taken, and remitted the record to the board for such testimony.

The testimony of Dr. J. C. Attix, explosive expert, and Dr. J. M. Hutchins, who performed the post-mortem on the body of decedent subsequent to his death, was added to the record, and the referee again found that the deceased husband of claimant died “as the result of carbon monoxide poison in the course of his employment with his employer on Sept. 21, 1928.” The referee has made a very careful analysis and complete summary of the testimony and there is little that we can add to this and our former opinion.

However, a further appeal was taken from the referee’s award to the said board, and the latter has again affirmed the action and award of the referee (see opinion filed Jan. 22, 1931).

Now this court has another appeal (filed Peb. 21, 1931) before it, which we shall now consider in connection with the exceptions filed, which are as follows:

“1. That the board erred in sustaining the findings of fact and conclusions of law of the referee.
“2. That the board erred in dismissing the defendant’s appeal.
“3. That neither the referee nor the Workmen’s-Compensation Board had before it sufficient, competent evidence to sustain the finding of fact made by the referee in his third finding of fact, which, in part, reads as follows:
' “ ‘3. On Sept. 20, 1928, claimant’s decedent, Ernesto Di Marcantonio, while in the course of his employment with Lewis Snyder, the employer, working in a stone quarry at Springfield, Delaware County, Pennsylvania, several minutes after seven blasts of dynamite had been exploded, entered the quarry into a hole about four feet deep, excavated by the explosion, and several minutes thereafter called for help, when a co-employee, Angelo Capuzzi, went to his rescue. He found him sitting on a stone and a few minutes thereafter fell unconscious. He was then taken out of the quarry, removed to the Delaware County Hospital, where he died the following day.’
“Appellant avers that there is no evidence to support this finding, but, on the contrary, the evidence as to time indicates that seven pop blasts were set off in the quarry at 8 or 8.15 A. M. on the morning in question and claimant’s husband collapsed on the premises at 9 or 9.15 A. M. on said day, and was received at the hospital at or about 10 A. M.; and instead of several moments intervening between the time when the employee entered the quarry and his being overcome, the evidence is clear, positive and unequivocal that approximately one hour intervened between the time when the seven small blasts were set off and the collapse of this employee, which evidence is further corroborated by the testimony of the employer that he observed the pile of small [58]*58broken stone made by said employee out of the stone that was broken up into small pieces by the seven pop blasts in question.
“4. That the referee did not have any competent or sufficient evidence of the presence of carbon monoxide gas upon the premises of the employer at the time he suffered the cerebral hemorrhage from which he died, which finding was affirmed by the Workmen’s Compensation Board without the taking of additional testimony and without having before it any evidence to support the said finding.
“5. That neither the referee nor the Workmen’s Compensation Board had before it any sufficient or competent evidence to support its finding ‘. . . that the decedent died as the result of carbon monoxide poison in the course of his employment with his employer on Sept. 21, 1928. . . .’
“On the contrary, your appellant avers that the evidence unmistakably shows that deceased employee died as a result of a cerebral hemorrhage; that a clot of blood the size of a silver dollar was found in the brain of decedent at the autopsy made on his body; that the blood stream was not light pinkish in color and of that type or structure which is found in persons suffering from the effects of carbon monoxide poisoning; and that the lungs and pulmonary organs of deceased employee showed no effect from the inhalation of carbon monoxide gas; all of which evidence is incompatible and contrary to the finding that this death was caused or aggravated by inhaling carbon monoxide gas.
“6. That claimant has failed to meet the burden of proof resting upon her to prove by expert medical testimony that the death of her deceased husband was actually caused by the alleged cause, since there was no evidence before the referee of the presence of carbon monoxide gas in the quarry of the employer at 9 or 9.15 A. M., and since the autopsy made upon the body of the deceased employee conclusively showed that death was caused by a cerebral hemorrhage due to sclerosis of the artery in the brain.
“7.

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Bluebook (online)
15 Pa. D. & C. 56, 1931 Pa. Dist. & Cnty. Dec. LEXIS 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/di-marcantonio-v-state-workmens-insurance-fund-pactcompldelawa-1931.