54 Pa. Commw. 41 | Pa. Commw. Ct. | 1980
Opinion by
This is an appeal by employer Borough of Morris-ville (Borough) from an award of widow’s benefits under Section 307 of The Pennsylvania Workmen’s
After the first hearing of the case, the referee denied the claim. The denial was based on the referee’s conclusion that the claimant had not met her burden of proving that her husband’s death was the result of a compensable “accident, ’ ’ within the meaning of Section 301(a) of the Act, 77 P.S. §431.
The claimant appealed the referee’s decision to the Workmen’s Compensation Appeal Board (Board). The Board set aside the decision and remanded the case to the referee with directions to consider certain case law relative to injuries sustained by volunteer firemen. Additionally, the referee was instructed to consider the medical testimony he had discounted. The Board rightly reasoned that it was prejudicial error for the referee to reverse his ruling on the medical testimony after the hearing had ended. That deprived claimant’s counsel of the opportunity to cure any defects during the hearing itself. The Borough’s appeal from that remand order was quashed by this Court on February 4,1977.
At the remand hearing, claimant’s medical expert again testified in response to a hypothetical question
The referee subsequently rendered a decision in favor of the claimant and consistent with the order and opinion of the Board.; the Board affirmed that decision and the instant appeal followed.
The decedent was an active member of the Morris-ville Volunteer Fire Company for a period of at least two years prior to his death. His regular occupation was that of a service station manager at the Pathmark Company and consisted of, as the referee found, “managerial and administrative duties requiring little physical exertion. ’ ’
The activities of decedent immediately proceeding his fatal heart attack consisted, of assisting the Assistant Fire Chief with a 200 foot fire hose in the course of extinguishing a small, routine brush fire. The day’s temperature was between 75 and 80 degrees; and the decedent was dressed in typical fireman’s gear consisting of a helmet, heavy coat and boots.
Minutes after his return to the firehouse, he collapsed and was subsequently pronounced dead upon arrival at the local hospital. The evidence established that the decedent’s death was caused, by acute coronary occlusion, secondary atherosclerosis and arteriosclerotic heart disease with generalized visceral congestion.
In contesting the award, the appellant asserts that the decedent’s fatal heart attack was not the result of an “accident,” as is required under the statute governing this claim. Specifically, the appellant raises the “unusual strain” doctrine, and contends that the decedent’s heart attack was not caused by stress or ex
The language of Foster indicates that the strain inducing activity must be compared to the individual’s usual, regular or everyday work. To be considered a compensable “accident,” the activity engaged in must constitute an unusual strain in light of the individual’s work history. The determination of unusualness is not restricted to a comparison of the various duties performed by the individual only while serving as a volunteer fireman. Such a restriction is unreasonable and unfair in cases involving volunteer firemen since they normally have other full-time occupations. That is precisely why the court in Foster expressed disapproval of applying the rules of the unusual strain doctrine to an inherently irregular, intermittent and unusual employment such as that of a volunteer fireman. In cases involving volunteer firemen, the test for unusualness must include a comparison to the individual’s regular, everyday occupation.
The appellant seeks further support for his argument in the case of Hilt v. Roslyn Volunteer Fire Company, 445 Pa. 149, 281 A.2d 873 (1971). The case involved a volunteer fireman who suffered a heart attack immediately after exerting extra muscular effort to free a jammed emergency brake lever on a 20 year old, ten ton fire truck. The claimant was a carpenter by profession and served as a volunteer fireman on a part-time basis only. The Board denied the claimant
Applying these principles to the case at hand, it follows then that the activities of the claimant on the day of his death, when compared to the sedentary nature of his everyday work, could properly be deemed to constitute an unusual strain within the meaning of the doctrine.
The additional contention raised by the appellant Borough focuses upon the manner of questioning by claimant’s counsel on direct examination of his medical expert.
The appellant argues that the testimony of claimant’s medical witness, Dr. Richard Helfant, was elicited in response to an improper hypothetical question and therefore should have been excluded. Respondent argues that the hypothetical question contained certain elements which were not part of the record evidence.
The general rule is that hypothetical questions must be based on matters which appear in the record
At the original hearing in the instant case, Dr. Ilelfant was asked to assume that the decedent was required to move his body through fairly tall weeds and that he was required to run with the full 250 foot length of hose. A review of the record reveals that neither of those assumed “facts” become part of the record. We agree with the Board, however, that it was error for the referee to overrule appellant’s objection to the question at the first hearing and thereafter disregard the testimony when making his final decision. A similar hypothetical was directed to the witness at the remand hearing. However, we must further agree with both the Board and referee that appellant’s objection to that hypothetical was insufficient. Appellant now contends that his objection should have been sustained because of the improper form of the question. But appellant failed to raise at that time the specific elements of the question which he now alleges to be improper. In our opinion appellant had a duty to designate those elements at the remand hearing, thereby giving the claimant an opportunity to correct the hypothetical if, in fact, it was defective. Castor v. Ruffing, 178 Pa. Superior Ct. 124, 112 A.2d 412 (1955).
It is conceded that the hypothetical questions posed to the medical witness, both at the original hearing and on remand, assumed certain facts not in evidence and were unusually lengthy. We note parenthetically that the propensity of claimant’s counsel to frame fact patterns in what might be called the style of a novelist is evident in his brief as well. However, where as in this case, a remand hearing was held and counsel failed on remand to specifically restate the original basis for
Furthermore, only a portion of Dr. Helfant’s testimony was given in response to the hypothetical question. We have carefully reviewed the record and find other unequivocal testimony sufficient to sustain the referee’s finding of a causal connection between decedent’s activities on March 21, 1971, and his subsequent death.
The decision of the referee, as affirmed by the Board, is fully supported by the evidence of record and is consistent with the applicable law. Accordingly, the Board’s decision is affirmed.
Order
And Now, the 23rd day of September, 1980, the order of the Workmen’s Compensation Appeal Board dated September 25, 1978, granting benefits to Elaine Grant, widow of Alvin Grant, deceased, is affirmed.
It is ordered that judgment be entered in favor of Elaine Grant and against the Borough of Morrisville and/or its insurance carrier. The defendant Borough and/or its insurance carrier are directed to pay com
This case arose prior to the 1972 amendments to the Act, and therefore required proof of an “accident”.