Opinion
Argued September 11, 1978
October 20, 1978.
Workmen's compensation — Scope of appellate review — Words and phrases — Capricious disregard of competent evidence — Medical evidence — Conflicting evidence.
1. In a workmen's compensation case where the party with the burden of proof did not prevail below, review by the Commonwealth Court of Pennsylvania is to determine whether the findings of the fact finder were the result of a capricious disregard of competent evidence which is the deliberate disbelief of undoubted evidence from an apparently trustworthy source such as would be repugnant to a person of reasonable intelligence. [212]
2. In a workmen's compensation case the resolution of conflicting medical testimony is for the fact finder, not the reviewing court. [212]
Argued September 11, 1978, before Judges BLATT, DiSALLE and MacPHAIL, sitting as a panel of three.
Appeal, No. 1597 C.D. 1977, from the Order of the Workmen's Compensation Appeal Board in case of William J. Kuchinski, Deceased, by Marion Kuchinski, widow and surviving spouse v. Williams Bakery, No. A-72619.
Petition with the Department of Labor and Industry for occupational disease benefits. Petition denied. Petitioner appealed to the Workmen's Compensation Appeal Board. Appeal dismissed. Petitioner appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
David J. Fallk, with him Robert W. Munley, and Munley Munley, for petitioner.
John R. Lenahan, with him John R. Lenahan, Sr., and Lenahan, Dempsey Murphy, and James N. Diefenderfer, for respondents.
This case comes before us by way of a petition for review of an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision denying compensation to William J. Kuchinski (Claimant) for his alleged exposure to an occupational disease hazard while employed by the Williams Baking Company (Employer). The referee found that Claimant failed to prove that he was exposed to an occupational disease hazard during his employment within the meaning of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 1 et seq. Specifically, he concluded that neither Section 301(c), 77 P. S. § 411 nor Section 108(n), as added by Section 1 of the Act of October 17, 1972, P.L. 930, as amended, 77 P. S. § 27.1(n), supports Claimant's contention that he had suffered a compensable injury.
Since the party bearing the burden of proof did not prevail below, the sole issue presented in this case is whether the referee's findings were made as a result of a capricious disregard of competent evidence. This scope of review involves more than mere disbelief of a witness or other competent evidence: it involves such deliberate disbelief of the undoubted testimony or evidence from an apparently trustworthy source as would be repugnant to a man of reasonable intelligence. Workmen's Compensation Appeal Board v. Sullivan, 22 Pa. Commw. 386, 348 A.2d 925 (1975).
It is clear from the record that the relevant medical evidence was conflicting. The referee, in adjudging the credibility of the witnesses, simply chose to believe that physician who testified in opposition to the Claimant's claim. There is no doubt that the evidence which he relied upon was competent. We see no reason to disturb the referee's findings, as affirmed by the Board.
It is well established that such a determination is in the referee's purview. Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commw. 176, 305 A.2d 757 (1973).
We note that the claimant elected to file under The Pennsylvania Workmen's Compensation Act rather than The Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P. S. § 1201 et seq. Ordinarily, we might be inclined to remand this case to permit the Claimant to proceed thereunder. See Workmen's Compensation Appeal Board v. Wlodarczyk, 21 Pa. Commw. 495, 347 A.2d 763 (1975). However, given the referee's conclusion that the Claimant was last exposed to an occupational disease hazard in 1967, the strictures of The Pennsylvania Occupational Disease Act would have required him to file a claim no later than mid-1973. The claim petition here involved was filed in January of 1975. It is clear, therefore, that the Claimant is barred from proceeding further.
ORDER
AND NOW, this 20th day of October, 1978, the order of the Workmen's Compensation Appeal Board dated July 7, 1977, denying benefits to Marion Kuchinski, is hereby affirmed.