The opinion
Dissenting Opinion by
Judge Colins:
I must respectfully dissent from the scholarly, well-argued position of the majority.
The Board in this matter has clearly entered into independent fact-finding, without taking additional evidence to support such. This violates the longstanding doctrine first elucidated in Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176 , 305 A.2d 757 (1973), that the referee is the ultimate fact finder where the Board, itself, has taken no additional evidence.
The facts as found by the referee show that decedent died while changing a tire, on a company car. Decedent frequently used the vehicle in connection with his work, during evening hours and on weekends to call on farmers. Therefore, the fact that decedent’s death occurred on a Saturday night in no way affects the legal conclusion that this changing of the tire was in the course of his employment.
The Board, however, indicates in its discussion of the evidence that it did not believe that decedent was changing the tire, but instead intimates that decedent committed suicide. It is clearly prohibited from doing this.
The Board stated that:
[T]here is absolutely no causal connection between decedent’s work as a farm advisor and sales consultant and his death. The running *168 of a motor vehicle in a closed garage, and the act of lying under it is more an abandonment of employment not unlike the drunk driving cases or drug abuse cases wherein compensation for deaths have been denied as not work related. . . . This board cannot find any testimony or inference that the decedent suffered a fatal accident while engaged in the furtherance of the employer’s business particularly when the decedent was found lying on his back with his head under the rear of the car in a garage filled with automobile exhaust fumes. (Citations omitted.)
The referee found that decedent did not commit suicide. His findings are supported by substantial evidence. A review of the record reveals that this suicide hypothesis was also rejected by the Pennsylvania State Police and the County Coroner’s Office following independent investigations.
The factual determination to be made, in this case, is whether decedent died while in the course of changing the tire on the automobile. This was determined by the referee and cannot be disturbed by the Board.
The legal determination to be made is whether the changing of the tire occurred in the course of decedent’s employment.
The Board first altered the factual findings of the referee and, based upon this alteration, drew its legal conclusion. Such bootstrapping is clearly prohibited by the applicable case law.
It is clear that changing a tire under circumstances as described in this case is within one’s employment.
In Beck v. Ashton, 124 Pa. Superior Ct. 307 , 188 A. 368 (1936), the court held that decedent’s death *169 occurred within the course of his employment and upheld the award of compensation to decedent’s wife. In Beclc, as in the instant case, decedent was subject to call at any time day or night and in the discharge of his duties, it was necessary to use an automobile. Decedent died of carbon monoxide poisoning while he was attempting to make certain that the car could be placed in the immediate use for business purposes. His body was found lying beside the car in his garage. The Court, prior to awarding compensation, stated that “while the automobile was not transporting the deceased at the time of the accident, it was being used in the sense that he was working with it so that it might be made available for his transportation, which was to his employer’s advantage.” Id. at 312 .
In the case at bar, decedent’s death arose in the course of his employment, was related to his employment, and was sustained while decedent was actually engaged in the furtherance of the business or affairs of his employer.
Accordingly, I would reverse the Board’s order and reinstate the award of compensation to the claimant.