6 Pa. Commw. 470 | Pa. Commw. Ct. | 1972
Opinion by
This is an appeal filed by Affiliated Food Distributors, Inc. (Affiliated), from an Order of the Workmen’s Compensation Board (Board), dismissing Affiliated’s appeal to it from an Award granted by an adjudication of a Referee of the Board to Stella Sabatini (Sabatini), widow of Stephen Sabatini (decedent). The Referee’s Award granted to Sabatini benefits for both (1) that period prior to her husband’s death on April 8,1969, together with all hospital and medical expenses incurred prior to that date, and in addition (2) workmen’s compensation death benefits after his death.
For approximately two years prior to February 19, 1968, the decedent was employed by Affiliated as a warehouseman. The decedent’s work entailed the lifting and moving of boxes and crates and other materials in his employer’s warehouse. On that date, February 19, 1968, while at work on a platform near an open door, the decedent who had “sweated up — a little overheated due to the work,” became exposed to a draft of very cold air (the outside temperature being near zero degrees Fahrenheit) from the opened door. Decedent stated that the cold air struck him in the face, and later, that same day, at about 9:00 P.M. as he was eating his supper, he noticed that he was developing a paralysis and numbness about his face, which became progressively worse. Decedent continued his work until February 27, 1968, at which time he consulted his family physician who informed him that he had contracted “Bell’s palsy.” The record indicates that the decedent had been in apparent good health prior to the above described incident.
As a result of this incident, a workmen’s compensation agreement was executed between the decedent and Affiliated on March 28, 1968, under which Affiliated acknowledged that the decedent had experienced a com
Decedent’s physical condition continued to deteriorate and after examination by several doctors and two confinements in a hospital, decedent’s disability was finally determined to be a cerebral vascular accident with hypertension. The record is quite clear that the decedent suffered two or more strokes between February 19, 1968, and his death on April 8, 1969.
Based on the record made before him, the Referee found that the decedent died as a result of the injuries he experienced on February 19, 1968. In affirming the Referee, the Board reached an additional conclusion stating that because of the two agreements between Af
Affiliated, in this appeal, contends that the execution of the compensation agreement with the deceased did not bar it from contesting the Fatal Claim Petition of the widow of the deceased; and, secondly, that the finding by the Referee and the Board of a causal connection between the accident and the decedent’s death is not supported by substantial evidence.
The scope of review of this Court has been recently set forth by the Legislature in the Act of February 8, 1972, P. L. (Act No. 12), where in Section 427 it is stated: “In any appeal to the Commonwealth Court, the scope of review shall be as provided in section 44, act of June 4,1945 (P. L. 1388), known as the Administrative Agency Law.” (71 P.S. §1710.44). That section in pertinent part states: “The court to which the appeal is taken shall hear the appeal without a jury on the record certified by the agency. After hearing, the court shall affirm the adjudication unless it shall find that the same is in violation of the constitutional rights of the appellant, or is not in accordance with law, . . . or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence.”
In recent cases before this Court we have held that where the Board has made an award in favor of the claimant we must look to determine if there is substantial evidence to support the findings of the Board, giving to the claimant, who has the award, the benefit of the most favorable inferences deducible from the testimony. See Bambrick v. Asten Hill Manufacturing Co., 5 Pa. Commonwealth Ct. 664, 291 A. 2d 354 (1972)
The record in this case clearly shows that the decedent’s family doctor made a “misdiagnosis,” for all four of the doctors who testified in this case (one doctor testified for the claimant and three testified for Affiliated) agreed that the decedent suffered from general arteriosclerosis, and that the decedent died of a cerebral thrombosis due to a thrombus of the right carotid artery. All three of Affiliated’s doctor witnesses agreed that the decedent’s symptoms would lead a medical expert to believe that decedent had Bell’s palsy.
In any event Affiliated, with full knowledge of all the then available facts, entered into a compensation agreement with the decedent, and later into a supplemental agreement with him, whereby Affiliated agreed to pay the benefits set forth in those agreements. Although Affiliated, at sometime prior to decedent’s death, petitioned the Board for the termination of the agreement, that petition was withdrawn before decedent’s death.
Our courts have passed upon the legal effect of a compensation agreement. In the case of Fehr v. Y.M.C.A. Pottsville, 201 Pa. Superior Ct. 107, 192 A.
In view of the fact that Affiliated had a right to file (Section 413 of the Workmen’s Compensation Act, Act of June 2, 1915, P. L. 736, as amended, 77 P.S. 771), and have a hearing on a petition to terminate an agreement for compensation, coupled with the fact that Affiliated filed such a petition and then thereafter voluntarily withdrew it, precludes Affiliated from now challenging any of the payments made or claimed under that agreement to the date of decedent’s death. Affiliated is liable under the terms of its agreement with the decedent, even in the face of the record made in this case, whereby the exact nature of the decedent’s injury may have been “misdiagnosed” by all of the doctors at the time the agreements were executed. Furthermore, in view of the fact that the supplemental agreement did not change any of the terms of the original agreement with reference to medical and hospital expenses, all of those expenses, together with the weekly compensation payments agreed to, which were not paid, must be paid to the widow to the date of decedent’s death, April 8, 1969.
The only remaining question, therefore, is whether the widow is entitled to any compensation benefits under her Fatal Claim Petition. The Referee found that the decedent’s death was a result of “‘an accidental injury” the decedent experienced on February 19, 1968. The Referee stated that the death was “a result of a thrombus of the internal carotid right artery.”
We have read and reread the entire record in this case. In doing so we have attempted to give the widow claimant the benefits of every inference. However, there is nothing in this record which described the work history of the decedent. We have no way of knowing whether or not, on February 19, 1968, the decedent was involved in any unusual strain or extraordinary exertion over and above that which he normally experienced in his every day work pattern as a warehouseman for Affiliated. The only testimony in the record is that of the claimant’s doctor who was not present on the warehouse platform on February 19, 1968, or any other date. The doctor’s testimony does not relate or refer to specific statements by the decedent that he had done any unusual work out of the ordinary work pattern. The only other evidence is a handwritten statement by the decedent in which he said: “[QJn February 19, 1968 I was working and the weather was cold almost 0° outside — I got sweated up — a little overheated due to the work. The mechanic was gassing up the truck so the doors were open for a certain length of time. The cold air came into the warehouse and cold air struck me on the face.” We conclude that this evidence is not sufficient substantial evidence to meet the burden of proving that the cause of decedent’s death was the result of
“To secure compensation there must of course, be both an accident and an injury. An injury cannot be inferred simply because there was an accident.” See Dennis v. Jarka Corporation, 182 Pa. Superior Ct. 498, 503, 127 A. 2d 803, 805 (1956).
Order
And Now, this 20th day of October, 1972, the Affiliated Food Distributors, Inc., and its workmen’s compensation insurance carrier are directed to pay to Stella Sabatini, widow of Stephen Sabatini, deceased, compen