Opinion
December 23, 1974.
Workmen's compensation — Scope of appellate review — Referee — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Words and phrases — Capricious disregard of competent evidence — Accident — Untoward happening — Break or tear of bone or tissue.
1. Prior to 1972 amendments to The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736, the Workmen's Compensation (Appeal) Board was empowered to vacate findings and conclusions of the referee and substitute its own determination therefor without hearing additional testimony, and an award of the Board rendered against the party with the burden of proof must be sustained on appeal by the Commonwealth Court of Pennsylvania unless the findings of the Board cannot be sustained without a capricious disregard of competent evidence. [515-16]
2. A capricious disregard of competent evidence Is the wilful and deliberate disbelief of an apparently trustworthy witness whose testimony could not possibly be challenged by one of normal intelligence. [516]
3. It is not erroneous to conclude that an employe was not injured as the result of a compensable accident when evidence indicates that the employe was doing his usual work in the usual manner at the time of the alleged accident, and it can be inferred that a progressive process of some years, rather than a specific untoward or fortuitous happening, caused his difficulty. [516]
4. Evidence merely that a workmen's compensation claimant suffered a protruded lumbar disc does not establish that he sustained a break or tear of bone or tissue. [516-17]
Submitted on briefs, December 5, 1974, to Judges KRAMER, WILKINSON, JR. and ROGERS, sitting as a panel of three.
Appeal, No. 8 Tr. Dkt. 1974, from the Order of the Workmen's Compensation Appeal Board in case of Roger R. Carpenter v. Flanigan Brothers, No. A-64464. Transferred April 23, 1974 from the Court of Common Pleas of Potter County to the Commonwealth Court of Pennsylvania.
Petition with Department of Labor and Industry for disability benefits. Benefits awarded. Employer and insurance carrier appealed to the Workmen's Compensation (Appeal) Board. Award set aside. Petitioner appealed. Held: Affirmed.
Thur W. Young, with him Fink and Young, for appellant.
James G. Schleicher, with him James N. Diefenderfer, for appellees.
Roger R. Carpenter, a workmen's compensation claimant, has appealed from an order of the Workmen's Compensation [Appeal] Board which set aside an award of benefits by a referee. All of the actions taken in this matter predated the amendments to Section 423 of the Workmen's Compensation Act, by Acts Nos. 12 and 61 of 1972, and therefore the Board had the power, as it did, to vacate crucial findings and conclusions of the referee and to substitute therefor its own determinations.
Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 854.
The appellant contends that the Board capriciously disregarded competent evidence, first, in finding that the claimant had not proved that his injury was the result of an accident, and second, assuming the correctness of the Board's finding that there was no accident, in finding that there was insufficient evidence of a break, rupture or tear of bone or tissue, thus rendering the unusual pathological result doctrine inapplicable.
The claimant was the only witness at the referee's hearing. On direct examination, he testified that while operating a bulldozer on October 24, 1969, he shifted from a reverse to a forward gear at full throttle and that the sudden forward motion thus produced caused him to be propelled against the backrest of the driver's seat. He felt a sharp pain in his back; suffered back pains later that day and the following day, and was disabled thereafter. On cross-examination, however, he testified to shifting gears as many as fifty times on October 24, 1969, and that on as many as ten occasions that day he had shifted from reverse to forward gear while the engine was at full throttle. He also admitted that "to a certain extent" the accident in which he felt the sharp pain was a "typical going back and forward operation."
The claimant's medical evidence consisted only of two very short letters from his treating physician stating that the claimant suffers from a protruded lumbar disc with nerve root involvement.
The scope of our review is narrow. We must affirm the Board unless its findings cannot be sustained without a capricious disregard of competent evidence. Yuhas v. Bethlehem Steel Corporation, 8 Pa. Commw. 302, 303 A.2d 266 (1973). A capricious disregard is the wilful and deliberate disbelief of an apparently trustworthy witness whose testimony one of normal intelligence could not possibly challenge. Rice v. A. Steiert Sons, Inc., 8 Pa. Commw. 264, 301 A.2d 919 (1973).
We are unable to determine that the Board capriciously disregarded competent evidence. The record does not establish that the claimant was doing other than his usual work in the usual manner on the day in question. It is as susceptible to the inference that the claimant's back troubles emanated from his many years of operating heavy equipment as it is to the finding of an accident, and indeed his claim petition states the cause of the injury to be "constant trauma to claimant's back caused by operation of [a] bulldozer." We are unable to conclude that a person of reasonable intelligence reviewing all of the evidence would not determine, as the Board did, that the claimant's symptoms and the protruded disc were not the result of an untoward or fortuitous happening on October 24, 1969. See Anderson v. King Kup Candies, Inc., 3 Pa. Commw. 227, 281 A.2d 369 (1971).
As noted, the claimant contends that even if the Board did not err in finding that no accident occurred, it capriciously disregarded competent evidence in finding that he sustained no break or tear of bone or tissue. The only medical evidence was the doctor's statement that the claimant suffers from a protruded lumbar disc. However, a lumbar disc may protrude without a tearing of tissue. Gray, Attorney's Textbook of Medicine, Third Ed. 1974, Vol. 1B, Chapter 15.
ORDER
AND NOW, this 23rd day of December, 1974, the order of the Workmen's Compensation [Appeal] Board disallowing the appellant's claim petition is affirmed.