Pennsylvania State Oral School v. Workmen's Compensation Appeal Board

475 A.2d 175, 82 Pa. Commw. 323, 1984 Pa. Commw. LEXIS 1415
CourtCommonwealth Court of Pennsylvania
DecidedMay 9, 1984
DocketAppeal, No. 1795 C.D. 1982
StatusPublished
Cited by2 cases

This text of 475 A.2d 175 (Pennsylvania State Oral School 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
Pennsylvania State Oral School v. Workmen's Compensation Appeal Board, 475 A.2d 175, 82 Pa. Commw. 323, 1984 Pa. Commw. LEXIS 1415 (Pa. Ct. App. 1984).

Opinion

Opinion by

Judge Barbieri,

Pennsylvania State Oral School (Employer) appeals here an order of the Workmen’s Compensation Appeal Board (Board) which reversed a referee’s dis-allowance of compensation and remanded for determination of benefits due for the work-related death of Michael Gerek payable to his widow, Elizabeth Gerek (Claimant), on her behalf and on behalf of their five children, all of whom were dependent upon decedent for their support at the time of his death. We will affirm.

We are aware, of course, as was the Board, that a compensation referee is the ultimate trier of factual issues, Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 805 A.2d 757 (1973); that a referee’s findings may not be disregarded by the Board or by this Court except when such findings are not supported by the evidence; and that where the referee’s findings are against the party having the burden of proof, appellate review is limited to determining whether the referee capriciously disregarded competent evidence in reaching his factual conclusions. Miller v. Workmen’s Compensation Appeal Board, 67 Pa. Commonwealth Ct. 493, 447 A.2d 721 (1982); Killian v. Workmen’s Compensation Appeal Board, 62 Pa. Commonwealth Ct. 29, 434 A.2d 906 (1981).

[325]*325Nevertheless our review of the record in this case, in light of the statements of the referee in his decision, leads us to conclude that (1) he misconceived the legal and factual nature of the hypothetical question put to Claimant’s medical witness and his role as referee with regard thereto, and (2) he misconstrued the testimony in support of Claimant’s burden to show that her deceased husband’s death was work-related. The result is that the referee’s factual determinations, based on erroneous legal conclusions, are in capricious disregard of the uncontradicted evidence.

We agree with the Board that the foundation for the referee’s finding that “the decedent’s death was not caused by or related to his employment” is contained in his “DISCUSSION” as follows:

The claimant’s medical witness was asked to assume that the temperature was particularly hot, or very hot, and that the boiler room was five to 10 degrees in excess of the normal; that more than one boiler was in operation; and that he removed ashes from the boiler. The witness also assumed that this was an acute coronary thrombosis resulting from excessive labor. These assumptions are not supported by the record. Therefore, the doctor’s opinion is incompetent1 to prove a causal connection. (Footnote added.)

[326]*326The assumptions referred to in this quote are the ones contained in the hypothetical question put by Claimant to her medical witness, Dr. Salvatore B. Pettinato, as follows:

Q. Now, Doctor, I would like you, if you can, to assume the following facts to be true. On May 28, 1978, Mr. Gerek, as a boiler man, or stationary engineer, at the Pennsylvania State Oral School was required, as part of his job, to take a 200 to 250 pound wheelbarrow, with coal, and fire boilers. As part of firing that boilers, he would take No. 12 coal shovels and. lift and throw coal shovels full, approximately eight foot into the boiler to fire the boiler; on that date of May 28th, the temperature was approximately five to ten degrees more than normal, or more than the average or more than the temperature for that day, which varied anywhere from 70° to 80°, and it’s been variously described as a very hot, or a hot day; in addition, Doctor, I’d also like you to assume that as part of Mr. Gerek’s job duties, it was required that he take a rake and spread ashes, and if possible, remove ashes from the boiler — although we’re not positive that he did that on that day, in addition, I’d like you to assume that the testimony reveals that Mr. Gerek was found in front of a boiler room which was a room with windows closed, but with a door open, in a supine or laying down position on one side, with what appeared to the witness to be a red handkerchief either in his hand or next to his hand, and appeared to have been white-ashed and dead for some period of time when he was found at approximately nine o’clock in the evening. Doctor, assuming those facts to be true, do you have [327]*327an opinion to reasonable medical certainty as to the cause of Mr. Gerek’s death?

We have examined the record, as did the Board, and conclude that the basic facts assumed in the question are supported by the evidence and that Dr. Pettinato’s opinion in response thereto unequivocally established that Michael Gerek’s death was causally related to his employment.

As noted by the Board, the hypothetical question was not objected to and the referee’s complaints as to its contents are entirely sua sponte. Furthermore, defendant adduced no medical testimony whatsoever and failed to weaken Dr. Pettinato’s solid opinion on cross-examination.

In order for a complaint concerning a hypothetical question to be valid, barring outright assumption of unsupported fact, there must be a timely objection and the specific elements of the question which are objectionable must be brought to the attention of the examiner. In Borough of Morrisville v. Workmen’s Compensation Appeal Board, 54 Pa. Commonwealth Ct. 41, 419 A.2d 813 (1980), we stated:

The Superior Court of Pennsylvania has held that absent a definitive statement of the particular grounds for objection, the points are not preserved for Appellate review. Sunseri v. RKO-Stanley Warner Theatres, Inc., 218 Pa. Super. 111, 374 A.2d 1342 (1977). Appellant cannot simply wait until the appeal to raise the particulars of the matter. As appellate brief is not the proper device for raising an objection not properly made below. Where no proper objection was taken to testimonial evidence presented at the hearing, the propriety of the admission of that evidence cannot be considered on appeal.

[328]*328Id. at 48, 419 A.2d at 817; see also Alcoa v. Workmen’s Compensation Appeal Board, 49 Pa. Commonwealth. Ct. 152, 410 A.2d 945 (1980); Workmen’s Compensation Appeal Board v. Jeddo Highland Coal Company, 19 Pa. Commonwealth Ct. 90, 338 A.2d 744 (1975).

In Gordon v. State Farm Life Insurance Co., 415 Pa. 256, 203 A.2d 320 (1964), a unanimous Supreme Court, in an opinion by the late Justice Musmanno, stated:

If the particular hypothetical question under fire was inadequate or unfair, it devolved upon defendant’s counsel to object in such a manner to permit plaintiff’s counsel to amend the question. Moreover, defendant’s counsel had full opportunity to put his own hypothetical questions to the doctors.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

TA Operating LLC v. L. Maurer (WCAB)
Commonwealth Court of Pennsylvania, 2024
Dietz v. WCAB (Lower Bucks County Joint Municipal Authority)
Commonwealth Court of Pennsylvania, 2015

Cite This Page — Counsel Stack

Bluebook (online)
475 A.2d 175, 82 Pa. Commw. 323, 1984 Pa. Commw. LEXIS 1415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-state-oral-school-v-workmens-compensation-appeal-board-pacommwct-1984.