Westinghouse Electric Corp. v. Commonwealth

400 A.2d 1324, 42 Pa. Commw. 147, 1979 Pa. Commw. LEXIS 1476
Commonwealth Court of Pennsylvania·Decided April 20, 1979·No. Appeal, No. 1469 C.D. 1978·Published·Cited by 3 cases

Opinions

Opinion by

Judge Rogers,

This is the appeal of the Westinghouse Electric Corporation (Westinghouse) from an order of the Workmen’s Compensation Appeal Board affirming a referee’s award of benefits to the widow of Walter H. Pollard, a Westinghouse employee. We affirm.

Mr. Pollard was employed by Westinghouse as an internal consultant, a position which required him to travel from his home in Pittsburgh to Westinghouse facilities throughout the country. On October 7, 1974, Mr. Pollard and another Westinghouse employee named Shea were to travel together to a Westinghouse facility at Hampton, South Carolina on a project which it was believed would take about a week. Mr. Pollard missed his flight from Pittsburgh but caught a later one the same day and joined Shea in Hampton late in the afternoon of October 7. They toured the Hampton plant and were then taken to Micarta Lodge, living accommodations provided by Westinghouse for visiting employees and customers. It was not required that [149]*149Pollard and Shea stay at Micarta Lodge and .there were public accommodations available, but at some 18 miles from the plant. They arrived at Micarta Lodge at about 6:30 P.M. Mr. Pollard consumed a drink from a bottle of whiskey supplied from a locked cabinet by Westinghouse’s local manager who had accompanied them to the Lodge. Mr. Pollard also called his wife on the telephone and told her he would be home on Thursday, October 10, 1974, a day earlier than he had been scheduled to return. Mr. Pollard then went out to dinner with Shea and three other Westinghouse employees. He drank a whiskey at dinner. The con-, versation was on social not business matters. The group returned to Micarta Lodge at 9:00 P.M. None of his companions observed anything unusual about Mr. Pollard’s behavior at this time. Mr. Pollard then had more drinks in the lounge of the Lodge. By about 9:45 P.M. he appeared to the other persons present to be intoxicated. Two of the men were required to assist him to his bedroom. As the other men were leaving the bedroom, Mr. Pollard asked Shea what time Shea wanted him to arise the next morning. Shea said that he would call him at 7:00 o ’clock A.M. Mr. Pollard was found dead the next morning on the floor of his bedroom.

Upon order of the coroner of Hampton County, South Carolina, two physicians performed an autopsy. One of them made a preliminary cause of death report recording that the immediate cause of Mr. Pollard’s death was asphyxia due to the aspiration of gastric contents in turn due to acute ethanol intoxication. On a place provided on the form for reporting whether the death was by accident, suicide, homicide, or undetermined, the doctor reported “Accident”. After a laboratory report of toxicological examination and urine drug screen was made, reporting a high level of ethanol in Mr. Pollard’s system and.overdoses of three [150]*150depressant drugs, the two doctors who made the autopsy reported as follows:

It is, therefore, the opinion of the prosecutors on the basis of the history as stated in this protocol, as well as the autopsy findings that the decedent came to his demise as a result of asphyxiation secondary to aspiration of gastric contents which resulted from central nervous system depression due to intoxication with ethanol and a combination of tranquilizers. It is further our opinion that the manner of death is best classified as accidental.

The claimant, Mr. Pollard’s widow, filed a claim petition for workmen’s compensation benefits. After nine hearings the referee made the following findings of fact:

SEVENTEENTH: Your referee further finds that taking into consideration the decedent’s blood alcohol level of .322 or higher, and impairment of his intellectual reasoning, sensory perception, and motor coordination, he would not have been able to form a conscious, deliberate, intellectually reasoned intent to commit suicide and did not take his own life, especially in view of his medical history, his conduct, his family relationship, and his solid economic posture.
EIGHTEENTH: Your referee finds from competent, credible medical testimony that the decedent was unqualifiedly under the influence of alcohol and that his mental processes in terms of intellectual reasoning, sensory perception, and motor coordination were severly impaired and compromised ruling out the possibility or probability of suicide, especially in the absence of any other evidence to indicate suicide.
[151]*151NINETEENTH: On the basis of the unequivocal, competent, and credible lay and medical testimony together with the exhibits, it is the considered judgment and finding of your referee that the decedent came to a compensable accidental death.

The referee concluded:

FIBST: On October 7, 1974, the decedent, Walter H. Pollard, III, died during the course of his employment on premises of the employer due to asphyxia caused by the aspiration of gastric contents into the respiratory tract produced by vomiting following the ingestion of ethanol and drugs and medications which severely depressed his Central Nervous System setting in motion the events which caused death, compensable under the terms and provisions of the Workmen’s Compensation Act as amended and the judicial interpretations thereof.

Westinghouse first argues that Mr. Pollard’s death did not arise in the course of his employment, as is, of course, required by §301 (c) of The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 11 P.S. §411. In considering this argument, we must keep in mind that Mr. Pollard’s position was one requiring visits to Westinghouse facilities in places other than Pittsburgh where he lived, that he was in Hampton, South Carolina on just such a business visit, that he had visited the Westinghouse facility in the late afternoon of October 7, 1974, that he was scheduled to resume his work the next morning and that he died in Westinghouse housing accommodations near the plant. In Aluminum Company of America v. Workmen’s Compensation Appeal Board, 33 Pa. Commonwealth Ct. 33, 380 A.2d 941 (1977), where the employee also died of other than [152]*152natural causes while on his employer’s business in a distant city, Judge Crumlish, Jb. wrote:

We approach the questions presented by this case with certain fundamental considerations in mind. First, the determination of whether an employee is in the course of his employment at the time of injury is one of law based upon findings of fact. Greene v. Marger, Inc., 12 Pa. Commonwealth Ct. 423, 317 A.2d 358 (1974). Second, when an employee sets out upon the business of his employer and is later fatally injured, there is a presumption that the employee was engaged in the furtherance of his employer’s business at the time of his death. Wolfingbarger v. Addressograph-Multigraph Corp., 188 Pa. Superior Ct. 136, 146 A.2d 309 (1958). Third, the course of employment of a traveling worker is necessarily broader than that of an ordinary employee, and is to be liberally construed to effectuate the purposes of the Act. Combs v. Cole Brothers Circus, Inc., 165 Pa. Superior Ct.

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Westinghouse Electric Corp. v. Commonwealth, 400 A.2d 1324, 42 Pa. Commw. 147, 1979 Pa. Commw. LEXIS 1476 (Pa. Ct. App. 1979).

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