Fessler v. Workmen's Compensation Appeal Board

484 A.2d 422, 86 Pa. Commw. 198, 1984 Pa. Commw. LEXIS 2050
CourtCommonwealth Court of Pennsylvania
DecidedNovember 28, 1984
DocketAppeal, No. 3501 C.D. 1983
StatusPublished
Cited by12 cases

This text of 484 A.2d 422 (Fessler v. Workmen's Compensation Appeal Board) 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
Fessler v. Workmen's Compensation Appeal Board, 484 A.2d 422, 86 Pa. Commw. 198, 1984 Pa. Commw. LEXIS 2050 (Pa. Ct. App. 1984).

Opinion

Opinion by

Judge MacPhail,

Harry S. Fessler (Decedent) suffered a myocardial infarction and died February 10, 1976, in the course of his employment as an insurance underwriter with Nationwide Insurance Company (Employer). His widow, Virginia Lee Fessler (Claimant), filed a fatal claim petition. The matter was first heard by a referee who denied benefits in March of 1978. When the Claimant appealed, the case was remanded by the Workmen’s Compensation Appeal Board (Board) for further findings in an order dated December 7, 1978. Although the referee fixed a date for a further hearing, no evidence was presented. Based upon arguments of counsel heard at that time, the referee in [200]*200December of 1980 again denied benefits. When tbe Claimant appealed a second time, the Board again remanded by an order dated November 5, 1981. This time, additional evidence from tbe Employer was received by tbe referee who, for tbe third time denied benefits in a decision filed in October of 1982. Finally, on December 1, 1983, tbe Board affirmed tbe referee’s denial of benefits. Tbis appeal followed.1 We reverse.

There seems to be basic agreement on some of tbe critical facts in tbis case. Tbe Decedent died at work while in tbe midst of a telephone call on tbe Employer’s business with another employee. He bad complained of chest pains to tbe Employer’s nurse tbe morning of bis death. Her advice to him to call bis physician was not heeded. Decedent bad been examined for heart problems in tbe summer of 1974. He was under a physician’s care for more than a year. He was diagnosed as having atherosclerosis and hypertension. Coronary heart disease was suspected. Tbe doctor recommended that be refrain from working for awhile. Eventually, however, be went back to work part-time and then full time in November of 1975. He died of a heart attack or myocardial infarction.

Claimant’s evidence consisted of her own testimony, testimony from tbe Employer’s nurse, tbe Employer’s assistant personnel manager, tbe Decedent’s immediate supervisor and a deposition from tbe Decedent’s treating physician, Dr. Jackson.

[201]*201On the basis of that evidence, the referee in 1978 made the following critical findings:

12. That Claimant failed to produce medical evidence to prove a causal relationship between decedent’s death and his employment on February 10,1976.
13. That Claimant failed to meet the burden of proof to establish decedent suffered an injury while in the course of his employment with the defendant on February 10, 1976, within the meaning of the Workmen’s Compensation Act.

He concluded that since the Claimant had failed to establish an injury, the claim petition should he denied.

The basis of Claimant’s first appeal to the Board in 1978 was that the referee was using the pre-1972 amendment to Section 301(c) of The Pennsylvania Workmen’s Compensation Act,2 the “injury” test. The Board agreed and remanded the case with instructions to decide the “only issue” in the case, which they said was whether there was a causal connection between the Decedent’s work and his heart attack. Apparently no one, not even the referee, protested to the Board that the referee had already made that determination in finding of fact number twelve.

As we have noted, no additional evidence was received by the referee at the remand hearing. The referee’s critical findings following the remand were:

15. That Claimant failed to present evidence of record to show any specific incident or particular action relating to decedent’s alleged stress of work.
[202]*20216. The evidence of record fails to support and substantiate the alleged stress, allegedly encountered by defendant, (sic) in his employment with the defendant, was the cause of decedent’s myocardial infarction.
17. That claimant failed to produce evidence of record to support and substantiate a causal relationship between decedent’s death and his employment with the defendant on February 10,1976.
18. That claimant failed to prove her decedent-husband suffered an injury on February 10, 1976, within the meaning of the "Workmen’s Compensation Act, as amended.

Again the Claimant appealed to the Board on the ground that the referee was still applying the “accident” test and again the Board agreed with the Claimant. Without any reference to the referee’s specific findings regarding causal relationship, the Board noted that stress itself and the injured person’s inability to deal with it can be causally related to employment. Westinghouse Electric Corporation v. Workmen’s Compensation Appeal Board, 59 Pa. Commonwealth Ct. 558, 430 A.2d 399 (1981). The Board then remanded this case to the referee with instructions that “either party may submit any additional evidence which is germane to the case.” (Emphasis added).

The referee dutifully held a third hearing at which the deposition of Dr. Moffitt, a medical witness for the Employer, was received over Claimant’s objection. This witness, who testified from medical records only, stated that in his opinion the Decedent’s stress at work did not contribute significantly to his heart attack and that the Decedent’s heart attack was the result of the progression of the hardening of the [203]*203arteries, including the coronary arteries. For the third time, the referee stated in his findings that Claimant failed to prove that the Decedent’s heart attack was causally related to his employment. The referee also stated that he was persuaded in reaching this conclusion by the testimony of Dr. Moffitt.

The Claimant appealed, to the Board a third time and this time the Board finally noted that the referee had ind.eed found that the Claimant had failed to prove the causal relationship between the Decedent’s employment and his heart attack and that the referee was persuaded by the testimony of Employer’s medical witness. Citing case law which holds that the referee is the ultimate fact finder, the Board denied the claim.

This rather extensive review of the proceedings was necessary to highlight the fact that in our opinion, neither of the two remands in this case was necessary. The Board may remand when ‘ ‘ the findings are not supported by the evidence or where a necessary finding was not made.” Lehigh Valley Coal Sales Co. v. Workmen’s Compensation Appeal Board, 66 Pa. Commonwealth Ct. 59, 64, 443 A.2d 1339, 1342 (1982). In the instant case, it was an error of law for the Board to remand on either occasion because the referee had made the appropriate fact finding pertaining to the causal connection after the first and second hearings. We conclude, accordingly, that the deposition of Dr. Moffitt should not have been considered by the referee or the Board.

We will, accordingly, review the medical testimony of Dr. Jackson bearing in mind that in this appeal since the referee and the Board found that the Claimant failed to meet her burden, we must affirm unless constitutional rights were violated, an error of law was committed or competent evidence was capriciously [204]*204disregarded.

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Cite This Page — Counsel Stack

Bluebook (online)
484 A.2d 422, 86 Pa. Commw. 198, 1984 Pa. Commw. LEXIS 2050, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fessler-v-workmens-compensation-appeal-board-pacommwct-1984.