Rinehimer v. Commonwealth

444 A.2d 1339, 66 Pa. Commw. 480, 1982 Pa. Commw. LEXIS 1283
CourtCommonwealth Court of Pennsylvania
DecidedMay 13, 1982
DocketAppeal, No. 34 C.D. 1981
StatusPublished
Cited by13 cases

This text of 444 A.2d 1339 (Rinehimer 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
Rinehimer v. Commonwealth, 444 A.2d 1339, 66 Pa. Commw. 480, 1982 Pa. Commw. LEXIS 1283 (Pa. Ct. App. 1982).

Opinion

Opinion by

Judge Williams, Jr.,

Donald and Shirley Mae Rinehimer, doing business as the Riverview Block Company (Company), have appealed from an order of the Workmen’s Compensation Appeal Board (Board) affirming the award of total-disability benefits to Earl R. Rinehimer (claimant).

The claimant was awarded benefits because of a totally disabling heart attack, which the referee found to have been caused by the claimant’s physical efforts in the course of his employment with the Company. Before this Court, the appellants do not contest that [482]*482the claimant suffered a heart attack; but they assert that the'heart attack was not shown to have the requisite causal connection with the claimant’s employment. The appellants also argue that the claimant did not comply with the 120-day notice requirement set forth in Section 311 of The Pennsylvania Workmen’s Compensation Act (Act),1 and that, thus, the claim was completely barred.

As of April 3,1976, the claimant was about 62 years old, and had been employed by the Company for approximately 18 years. His primary job was to drive a truck that transported ready-mix cement; although on some occasions he worked as a general laborer for the Company. On April 3, 1976, the claimant had no cement to deliver, and was engaged in the task of shoveling ashes, at the request of his employer and on the employer’s premises. While so engaged, the claimant began to experience pain in his left shoulder and in his chest. According to the claimant, this pain would subside and recur after interim periods of rest. The claimant mentioned the pains to a fellow employee, but proceeded to complete his entire work shift of April 3rd. After having the following day off, the claimant returned to work on April 5, 1976, and worked every day thereafter until April 10, 1976, which would prove to be his last day of work.

On April 10, 1976, the claimant, while removing chutes from his cement truck during a delivery, once again experienced pain in his left shoulder and in his chest. According to the claimant, the pain on that occasion was more severe than the prior episode, and was accompanied by a “cold sweat.” The claimant completed his work shift for April 10th, and told no one at the Company about his physical experience that day. -The following day, April 11, 1976, was another [483]*483day off for the claimant. While he was at home that day, the claimant again had an attack of pain in his chest. This episode induced him to consult a doctor.

On April 12, 1976, the claimant was examined by Dr. Robert Campbell, a specialist in family medicine. Based on his examination of the claimant, and the history provided by the claimant, Dr. Campbell concluded that his patient had suffered a heart attack or was in the process of having a heart attack. Consequently, the doctor had the claimant admitted to a hospital, on April 12th. The claimant remained in the hospital until April 30, 1976; and was re-hospitalized from June 20 through June 26,1976.

The same day that the claimant was first admitted to the hospital, April 12, 1976, his wife telephoned the president of the Company and told him about her husband’s physical condition. But, the only information communicated by the wife to the president was that the -claimant had been hospitalized and that he “had a heart infarction. ’ ’

On December 1.0, 1976, the claimant filed a claim petition alleging, in effect, that he had been disabled by a heart attack suffered on April 10, 1976. The employer’s answer to the petition included a denial that the injury was work-related, and a denial that proper notice was served.

At the hearing before the referee, there was a conflict of testimony as to whether the claimant’s heart attack was related to his employment. The claimant’s medical witness, Dr. Campbell, testified that the heart attack he diagnosed on April 12, 1976, was caused by the claimant’s physical exertions at work on April 3 and April 10, 1976. The employer’s medical witness, Dr. Milton J. Goldstein, testified that he was unable to discover any causal relationship between the claimant’s work activities and the heart attack. According to Dr. Groldstein, the claimant’s adverse coronary epi[484]*484sodes were due to au underlying, preexisting coronary disease. Dr. Campbell did not disagree that the claimant had the preexisting disease.2

It is well settled that where there is a conflict of medical opinion, it is for the referee as fact-finder to determine which is more credible, which is entitled to more weight, and which to adopt. Stegmaier Brewing Co. v. Workmen’s Compensation Appeal Board, 50 Pa. Commonwealth Ct. 241, 412 A.2d 697 (1980). Thus, in the instant case, it was within the referee’s province to accept the opinion of the claimant’s medical witness, over the opinion of the employer’s medical witness, as to the cause of the claimant’s heart attack. Yet, that notwithstanding, there exists in this case the question of whether the claimant’s right to compensation must fail because of the Act’s notice-of-injury provisions.

Section 311 of the Act provides in part as follows:

Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his behalf . . . shall give notice thereof to the employer within twenty-one days after the injury, no compensation shall be due until such notice be given, and, unless such notice be given within one hundred and twenty days after the occurrence of the injury, no compensation shall be allowed. (Emphasis added.)

Section 311 further provides that:

[I]n cases of injury resulting from ionizing radiation or any other cause in which the nature [485]*485of the injury or its relationship to the employment is not known to the employe, the time for giving notice shall not begin to run until the employe knows, or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to his employment. (Emphasis added.)

In the case at bar, both the referee and the Board concluded that the claimant had provided his employer with adequate and timely notice. As we view the record before us, such a conclusion is not sustainable.

Before the referee, the sole evidence going to the issue of notice was the claimant’s wife’s telephone call of April 12, 1976: informing the Company’s president that the claimant had been hospitalized and “had a heart infarction.” According to the referee, and the Board, that telephone message satisfied the Act’s notice-of-injury requirements. Such a conclusion ignores the express terms of Section 312 of the Act, which prescribes the information to be contained in a notice of injury. Section 312 states, in part here pertinent, that:

The notice referred to in section three hundred and eleven shall inform the employer that a certain employe received an injury, described in ordinary language, in the course of his employment on or about a specified time, at or near a place specified. (Emphasis added.)3

The telephone message from the claimant’s wife did not tell the employer, or even suggest, that the claimant’s heart attack was work-related.

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Cite This Page — Counsel Stack

Bluebook (online)
444 A.2d 1339, 66 Pa. Commw. 480, 1982 Pa. Commw. LEXIS 1283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rinehimer-v-commonwealth-pacommwct-1982.