22 Pa. Commw. 371 | Pa. Commw. Ct. | 1975
Opinion by
This is an appeal by Penn Brook Milk Company and Federal Insurance Company (appellants) from an order of the Workmen’s Compensation Appeal Board (Board) sustaining a referee’s grant of workmen’s compensation benefits to Margaret H. Vain (claimant). Claimant is the surviving dependent spouse of Robert J. Vain (Vain) who died during the course of his employment as a milk truck driver and dairy salesman.
The facts immediately surrounding Vain’s death, the proof of which here is necessarily dependent on conflicting circumstantial evidence, presented a very difficult setting for the referee to fulfil the fact-finding role that is imposed on referees by the Pennsylvania Workmen’s Compensation Act.
*373 “2. That on January 29, 1968 the decedent, while making a delivery on his route, on the Northwest Corner of Green way Ave. and Third Ave., Darby, Pa. slipped and fell and struck his head on the street.
“3. That as a result of the fall claimant [sic] suffered a bruise on the left side of his forehead and abrasions to the back of the scalp, all of which resulted in his accidental and immediate death.”
The Board, without taking any additional testimony, affirmed the referee while making the following modifications to his findings:
“We shall affirm the determination of the referee by adding these amendments:
“We delete the work [sic] ‘slipped’ in finding of fact #2.
“We add to finding of fact #3 a sentence at the end thereof:
“The fall produced myocardial ischemia causing electrical failure of the heart and produced a fatal arhythmia [sic] resulting in death.”
Upon close examination, we conclude that the Board clearly erred, for it is now well settled that the Board may not make its own findings of fact, or modify those of the referee, unless it first takes additional evidence. Weller Electric Corporation v. Workmen’s Compensation Appeal Board, 12 Pa. Commonwealth Ct. 485, 317 A. 2d 339 (1974). The Board of course may still consider whether any of the referee’s conclusions constitute an error of law. Barnold Shoes, Inc. v. Workmen’s Compensation Appeal Board, 10 Pa. Commonwealth Ct. 73, 308 A. 2d 189 (1973).
The appellants have withdrawn their objection to the Board’s deletion of the word “slipped” from the referee’s second finding and we therefore do not have before us the propriety of that modification. However, appellants continue vigorously to contest the Board’s addition to the referee’s third finding.
A direct reading of the referee’s third finding necessarily leads one to the conclusion that Vain died of a head injury. Such a finding cannot be subtantiated by the record as there was no medical testimony presented in support of a proposition that the head injury was the direct cause of Vain’s death. If we were to accept this finding as complete on its face, we would be compelled to reverse for it is clear that such a finding is not supported by substantial competent evidence in the record.
However, the Board in its opinion recognized what it thought to be the referee’s obvious and inconsequential mistake in the drafting of his findings when it noted:
“In finding of fact #3 the referee found that as the result of the fall, decedent suffered a bruise on the left side of his forehead and abrasions to the back of his scalp, all of which resulted in his accidental and immediate death. The referee makes no mention of the immediate cause of death, the coronary occlusion. It is obvious, however, that the referee accepted as true the conclusion of the cardiologist presented by claimant. His conclusion was that the fall produced so much myocardial ischemia that there was an electrical failure of the heart, that produced a fatal arhythmia, which resulted in death.”
We find this “mistake” to be neither obvious nor inconsequential. The referee’s findings do not in any man
We therefore issue the following
Order
And Now, this 16th day of December, 1975, it is ordered that the record in this case be remanded to the Workmen’s Compensation Appeal Board which shall dispose of same in a manner not inconsistent with this opinion.
. Act of June 2, 1915, P. L. 736, as amended, 77 P.S.§1 et seq.