Viehdorfer v. Cherry Run Coal Mining Co.
| Decision Date | 29 January 1937 |
| Docket Number | 387-1936 |
| Citation | 125 Pa.Super. 201,189 A. 782 |
| Parties | Viehdorfer, Appellant, v. Cherry Run Coal Mining Company et al |
| Court | Pennsylvania Superior Court |
Argued October 26, 1936
Appeal from judgment of C. P. Centre Co., May T., 1936, No. 5, in case of Mary Viehdorfer v. Cherry Run Coal Mining Company et al.
Appeal from award of Workmen's Compensation Board.
The facts are stated in the opinion of the Superior Court.
Appeal sustained, award set aside and judgment entered for defendant, opinion by Fleming, P. J. Claimant appealed.
Errors assigned, among others, were various excerpts from opinion of the lower court.
Judgment reversed.
John T Taylor, with him Arthur C. Dale, for appellant.
E. J Thompson, of Thompson & Litke, for appellee.
Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.
This is one of those border line workmen's compensation cases in which the husband of claimant, sixty-two years of age and afflicted with arteriosclerosis, suffered a fatal cerebral hemorrhage while engaged in his accustomed employment of loading coal in one of his employer's mines. No new questions of law are involved -- the controlling question being whether there was competent evidence to support the conclusion of the compensation authorities, reversed by the court below, that the employee's death resulted from an "accident", within the meaning of our Workmen's Compensation Act of June 2, 1915, P. L. 736, or whether, as contended by the defendants, it was attributable to the normal, ordinary and usual progress of his pre-existing chronic disease.
At the first hearing before a referee, at which the claimant was not represented by counsel, the substance of the evidence was that between eleven and twelve o'clock on the forenoon of August 31, 1934, the decedent and his brother-in-law, Frank Hipple, were attempting to push a mine car, partially loaded with coal, away from the "face" and up a slight "hump" in order to continue loading it when decedent's feet slipped and "he went down . . . . kind of on his side." Hipple testified he and decedent were behind the car and decedent was pushing "as much as he could." Upon being removed from the mine to his home he was attended by Dr. E. H. Harris, who was not present at the hearing. From his home he was taken to a hospital at Philipsburg, arriving in the early afternoon. Dr. L. Luxemberg, who first saw decedent at the hospital, testified the patient was then unconscious, had spastic paralysis of the left side of his body, and had a blood pressure of 250/145. An examination of his urine showed the presence of albumen and casts; his death occurred at 5:30 the following morning from a cerebral hemorrhage. This witness stated decedent had arteriosclerosis and that the kidney condition disclosed by the examination and the high blood pressure noted accompany that disease. The substance of the medical testimony at this hearing was that decedent's physical condition was such that he might have suffered a cerebral hemorrhage at any time. The evidence adduced would not sustain a satisfactory inference one way or the other upon the question whether the hemorrhage was attributable to the exertion put forth in starting the car or incident to the slipping of the employe's feet, or whether the fall itself was caused by a hemorrhage which occurred in the normal progress of the arteriosclerosis.
Under the evidence at this hearing, the referee found the death was "not shown to have been the result of such violence to the physical structure of the body as is contemplated [by the act], nor was it shown to have been the result of an accident while in the course of employment." The referee accordingly, and we think properly in the light of the medical evidence then upon the record, disallowed the claim.
On July 8, 1935, the board granted a rehearing and the case came on before another referee; the claimant was represented by counsel at the rehearing and Dr. Harris was called. Upon consideration of the additional lay and medical testimony then adduced, the referee made, inter alia, the following findings of fact:
Claimant was awarded compensation on the basis of a weekly wage of $ 19.64, at the rate of $ 8.64 per week, beginning September 8, 1934, for a period of 300 weeks, or a total of $ 2,592, with interest on each payment from the date it should have been made. The board, upon appeal to it, sustained the findings of fact and conclusions of law of the referee. The defendants thereupon appealed to the common pleas of Centre County and that tribunal, in an opinion by Fleming, P. J., sustained the appeal, set aside the award and entered judgment in favor of the defendants. This appeal by the claimant from that judgment followed.
At the rehearing the testimony of the witnesses for the claimant who appeared at the first hearing was considerably amplified, and Dr. E. H. Harris, the physician first called to attend decedent, was an additional witness. The claimant testified, without objection, that when her husband was brought home from the mine he complained of pain in his right side and said the car "was too much for him." Decedent's daughter, who was a trained nurse, testified her father vomited blood several times after he was brought home, and in preparing him to go to the hospital she noticed several red marks upon his right thigh. Frank Hipple, the brother-in-law, testified decedent said, immediately after he fell, "I believe I hurt myself," and that it required unusual exertion to push the car and its partial load, which weighed about 3,800 pounds in all, over the slight "hump" left by the coal cutting machine.
One of the reasons assigned by the learned president judge of the court below for setting aside the award was that the finding of the referee that the decedent, in pushing the car ...
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