16 Pa. Commw. 187 | Pa. Commw. Ct. | 1974
Opinion by
This case has a long and somewhat complicated history which, for the purposes of this opinion, needs not he set forth in its entirety. Claimant-appellant injured his right ankle in 1962 while in the employ of appellee. A claim petition was filed and after a hearing, the ref
On January 29, 1966, appellant reinjured his right ankle and on March 16, 1967, filed a petition to modify the previous award on the grounds that the 1962 injury caused or contributed to the 1966 injury, alleging that the 1966 injury totally disabled him. Hearings were held and testimony was taken from the appellant, his orthopedic surgeon, and the appellee’s orthopedic surgeon. On April 22, 1968, the referee awarded total disability from January 29, 1966, to April 19, 1966, and 15% disability and loss of earning power thereafter. Then followed a series of appeals which eventually resulted in additional testimony being taken from the same three witnesses before a referee in 1973, a hearing before the Workmen’s Compensation Appeal Board on December 12, 1973, and an opinion of the Board on March 14, 1974, affirming the April 22, 1968 referee’s award. Appellant then filed this appeal.
The main issue here is whether the Board erred in not finding total disability after the 1966 injury. Appellant claims that since appellee offered no evidence that work of the type appellant was able to perform
This Court has had occasion to examine issues similar to that involved here in Schrader & Seyfried, Inc. v. Cerny, 7 Pa. Commonwealth Ct. 659, 301 A. 2d 125 (1973), and Pardee v. Erie City Iron Works, 9 Pa. Commonwealth Ct. 253, 305 A. 2d 741 (1973). In those cases, we held that neither Petrone, supra, nor Barrett, supra, places upon the employer-appellee the burden of showing the availability of work where the claimant has not proved a change in his condition of disability previously determined. In this case, the Board found that claimant was 15% disabled on and after April 20, 1966, which is the same percentage disability as before the 1966 injury. The issue thus becomes whether claimant-appellant has carried his burden of showing a change from his previously determined 15% disability after April 20,1966.
Where the claimant has the burden of proof, and the compensation authorities have found against him, our scope of review is to determine whether there has been a capricious disregard of competent evidence. Barrett, supra. Capricious disregard of competent evidence is a wilful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching the result. Isherwood v. Township of Penn Hills, 13 Pa. Commonwealth Ct. 187, 318 A. 2d 767 (1974). Although we agree that competent evidence, having been admitted, may not have been accepted when it conflicted with other competent evidence, this does not constitute capricious disregard. Furthermore, we find that the facts found by the referee are supported by sufficient competent evidence.
Appellant has failed to prove any change in his disability and loss of earning power of 15% after April 20, 1966, and, therefore, appellee was under no duty to show that work was available. Par-dee, supra.
Accordingly, we enter the following
Oedee
Now, December 17,1974, the order of the Workmen’s Compensation Appeal Board, dated March 14, 1974, is affirmed.