43 A.2d 408 | Pa. Super. Ct. | 1945
Argued April 23, 1945. Judgment was entered in the court below against defendant and its insurance carrier on an award in favor of claimant, the widow of deceased employee, and his minor grandchildren. Defendant and its insurance carrier have appealed.
Claimant is the widow of Harry Wilkinson who died on August 10, 1939. For thirty-three years he had driven a delivery truck for Wanamaker's, Philadelphia, in the neighborhood of Roxborough. When this service was discontinued he became a driver for defendant, which had taken over the delivery service for a number of department stores, and he was assigned to the Germantown area where he lived. His duties consisted of driving a truck over an assigned route and delivering the parcels with which the truck had been loaded the previous night. On August 2 or 3, 1939, deceased reported for work at the usual hour of 8 a.m. and took out his truck. His work usually lasted until seven or eight o'clock in the evening; but on the day in question he stopped at his home in the latter part of the afternoon and told his wife that he just had an accident. He further stated that while lifting a big roll of linoleum off the truck he slipped back and it fell on his shoulder and caused immediate pain in his arms and chest. Claimant testified that his eyes were heavy, that he had a peculiar color, that he was pale and appeared ill, and that "the sweat just poured off him."1 Claimant gave him aromatic spirits of ammonia, and after he had rested a while he took his truck back to the garage of defendant and returned home for supper. He was unable to eat and went *25 directly to bed. Although he continued to work, his health declined to the date of his death about a week later. During that period he was tired and exhausted and without appetite; he was short of breath, had frequent "sweats," and was unable to sleep. On August 10, 1939, he went to the office of the union to which he belonged to pay the dues, and while there he collapsed and was taken to the hospital, and died the same morning at 10:30. An autopsy was performed; and there was medical testimony to the effect that the cause of death was the rupture of small blood vessels of the heart which occurred at the time of the accident, followed by necrosis and ultimate collapse. Dr. Joseph Edeiken, a specialist in heart diseases, testified that there was a causal connection between the accident suffered on August 3, 1939, and the subsequent death of deceased on August 10, 1939. Dr. W.D. Stroud, on the other hand, likewise a specialist in heart diseases, testified for defendant and gave as his opinion that there was no causal connection between the accident and the subsequent death. Defendants do not suggest that claimant's medical testimony does not meet the required standards.
About two days after deceased's death an investigator for defendant insurance carrier came to the Wilkinson home. Claimant was not at home but the investigator spoke to her daughter. After the funeral the investigator made an appointment with claimant and again came to her home. He was advised about the accident by claimant and the nature thereof, and she signed a statement which the investigator prepared. Prior to the filing of the claim petition, the investigator obtained a statement from the hospital as to deceased's death and the physical findings. The investigator was not called by the defense; and claimant's signed statement was not produced by defendants. Deceased's son also worked for defendant, and returned to work on the Monday following his father's funeral, having been on vacation at the time of his father's accident and death. On the day he *26 returned to work, he told his father's foreman that the defendant was to blame for his father's death as the linoleum had fallen on his father because of the way the truck was loaded. The son likewise complained to defendant's supervisor and assistant superintendent and told both that defendant was to blame for his father's death as rolls of linoleum should not be placed on the truck with only one man to remove them, and that the accident had occurred when his father was endeavoring to unload a large roll of linoleum alone.
On December 8, 1939, an adjuster for the Workmen's Compensation Bureau, acting in the course of his official duties, prepared a claim petition for claimant. He went to claimant's home for this purpose, claimant not being represented by counsel at the time. Probably due to inexperience, this adjuster inserted in the petition the date and place of death as the date and place where the injuries or accident had been sustained. He was called by defendants; he admitted that he had some recollection that he had been told by claimant of deceased's accident on August 2 or 3, 1939, the manner in which it happened, and the visible results thereof.
At the first hearing before the referee, when claimant was represented by counsel, on September 25, 1940, the inaccuracies in the claim petition were corrected by amendment. An amendment was allowed to the effect that the accident happened on or about the second day of August, 1939, that the nature of the accident was that, while engaged in unloading a roll of linoleum from a truck which deceased operated in the employ of defendant, his foot slipped in the body of the truck, with the result that the weight of the roll of linoleum was thrown on him precipitating a heart attack, and that his death on August 10th was the end result of the heart attack suffered on or about the second day of August, 1939, under the narrated circumstances.
The referee made an award for compensation to claimant on her own behalf and on behalf of the minor *27 grandchildren. As to the latter it was found that they were totally dependent upon deceased for support at the time of his accident; that they were living with him and supported by him at the time and were not receiving support from any other source. The referee also found that deceased suffered an accident on August 2 or 3, 1939, in "unloading a heavy roll of linoleum from a truck, while in the course of his employment with the defendant, when he slipped and the linoleum fell on decedent's shoulder," and that the "cause of claimant's decedent's death [on August 10, 1939] was a coronary occlusion which resulted from the accident he sustained on August 2, or 3, 1939."
The Workmen's Compensation Board affirmed the findings of the referee, but remanded the case for further evidence on the question of notice and to make such additional findings of fact, conclusions of law, and award or disallowance as might be warranted by the evidence. After taking additional testimony on the question of notice, the referee again made an award after republishing the same findings of fact and conclusions of law as before, and in addition finding that adequate notice had been given. The board affirmed the findings of fact, conclusions of law, and award of the referee. Defendants then appealed to the court of common pleas and filed 15 exceptions. The court below in its opinion says: "The defendant does not question the sufficiency of the evidence to prove the accident." In the same position is the status of the grandchildren. The court of common pleas dismissed the exceptions, affirmed the board, and entered judgment on the award. Thereupon this appeal was taken by defendants.
Before commenting upon those matters which are here raised for the first time, and which in addition are without any merit, we shall take up the questions raised by defendants by their exceptions, and argued in the court below, which may deserve consideration.
Section 311 of the Workmen's Compensation Act of June 2, 1915, P.L. 736, as reënacted and amended by the *28
Act of June 21, 1939, P.L. 520, § 1,
Notwithstanding the finding of the compensation authorities that due notice had been given, defendants contend that there was no proof in the record of notice within ninety days of the accident. We are of the opinion there was not only notice to defendants but knowledge on their part. If the testimony of claimant and her son was believed, which it evidently was, there is sufficient competent evidence to sustain the finding that defendants had notice and detailed knowledge of the accident within the time limitation of the act. There is no requirement that the notice must be in writing. Section 312 of the Act of 1915, as reënacted and amended,
Claimant's petition was filed on December 8, 1939. The first hearing before the referee was on September 25, 1940, at which time the amendment in question was allowed. At the time the amendment was made, defendants were in possession of the correct facts, and they were not misled in any respect by the amendment, nor were they deprived of any available evidence. They did not move for a continuance, and they filed no supplemental answer. The original claim petition averred in effect that deceased died on August 10, 1939, as a result of an injury sustained in the course of his employment with defendant. See Polk v. WesternBedding Co. et al., *30
The form used by an employee of the Workmen's Compensation Bureau in the preparation of claimant's petition does not contain the word "accident," the word "injury" apparently being used to comprehend "accident." But the purpose of the original claim petition was accomplished, that is, to give notice of the claim.Vitkovic v. Pennsylvania Clay Co.,
In Testa v. National Radiator Corp. et al.,
In the present case no new and different cause of action was presented by the amendment. See Goldberg v. Friedrich, supra,
Defendants' next contention is that there was no causal connection shown between the accident and deceased's death. From no point of view can we find any merit in their argument. We shall make reference later to the finding that deceased had suffered an accident while in the course of his employment, and that no exception was taken thereto by defendants, and consequently was not considered by the court below. It suffices to say that the medical testimony given as to the causal connection between the accident suffered by deceased and his subsequent death was conflicting. Dr. Edeiken testified on behalf of claimant, and his opinion was that there was a causal connection. Dr. Stroud called by defendant testified that there was no causal connection. Both the referee and the board accepted the testimony of the former and rejected that of the latter. Dr. Edeiken did not ignore the autopsy findings, and his testimony was not based on any erroneous assumptions as asserted in defendants' argument. There was testimony that the linoleum was bulky and heavy, and it *33
appears that Dr. Edeiken examined the original autopsy report. The credibility of medical witnesses and the weight to be attached to the testimony of each are matters finally and exclusively for the board, and where any conflicts appear in such experts' theories or opinions it is for the board to decide which conclusion it will adopt. Kennedy v. Holmes Construction Co. etal.,
We find no reversible error in the fact that the board indicated that the failure of defendants to produce the signed statement of claimant given to the investigator of the defendant insurance carrier and to call the investigator as a witness meant that the statement and the testimony would be unfavorable to defendants. The ninth and tenth assignments of error are therefore without merit. The presumption of the law is always against the party who withholds testimony in his power, bearing directly on his case. Harkins v. Varone,
The referee and the board found as a fact that deceased had suffered an accident while in the course of his employment with defendant on or about the second day of August 1939 and as a result of such accidental injury died on August 10, 1939. No exception was taken to such finding, and the sufficiency of the evidence to establish an accident was not questioned. The first exception to the decision of the Workmen's Compensation Board deals with the medical testimony. Exceptions 2 to 9, inclusive, relate to the matter of notice, and the remaining exceptions, 10 to 15, inclusive, question the right of claimant to amend her claim petition. The matter is not now properly before us for consideration. McDermott v. Sun Indemnity Co. of New York,
Defendants also argue, without any justification at this time, that deceased's three grandchildren were not *34
entitled to an award in their favor. The board made findings of fact in this respect followed by a conclusion of law. No exception was taken to the findings of fact or the conclusion of law involving the status of deceased's grandchildren. It was not considered by the court below, nor is it assigned as error on this appeal. It will not be considered now by this court.McDermott v. Sun Indemnity Co. of New York, supra,
All the assignments of error are overruled.
Judgment of the court below is affirmed.