57 Pa. Commw. 610 | Pa. Commw. Ct. | 1981
Opinion by
Petitioner (employee) appeals from an order of the Workmen’s Compensation Appeal Board (Board) which denied Petitioner’s claim for additional total disability benefits. We affirm the Board’s order.
On May 19, 1977, in the course of his employment, Petitioner sprained his left ankle. Despite his ankle injury, Petitioner worked from May 21, 1977, until May 26, 1977, on which date he was discharged from employment. On July 8, 1977, Petitioner asserted before an unemployment compensation referee that he was available for work and began receiving unemployment compensation. On January 17, 1978, Petitioner was examined by his physician who determined that Petitioner had arthritis in his left foot. Based upon
In this appeal, Petitioner contends that the referee capriciously disregarded competent evidence in failing to find that Petitioner has been totally disabled since January 17, 1978, by arthritis in his left foot, causally connected with Ms May 19,1977, work-related ankle injury. “A capricious disregard of competent evidence is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching the result.” Transue v. Falk’s Food Basket of Philadelphia, 27 Pa. Commonwealth Ct. 156, 158, 365 A.2d 894, 895 (1976) (citation omitted). “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.” Kuchinski v. Workmen’s Compensation Appeal Board, 38 Pa. Commonwealth Ct. 210, 212, 392 A.2d 348, 349 (1978) (citations omitted); Schick v. Newspaper Guild of Greater Philadelphia, 25 Pa. Commonwealth Ct. 108, 358 A.2d 127 (1976).
Petitioner and Respondent produced extensive expert medical testimony. Both Petitioner’s doctor (a physician) and Respondent’s doctor (a physician specializing in internal medicine and rheumatology) testified that an x-ray of Petitioner’s left ankle (sprained in the course, of employment) was within
As part of the examination by Petitioner’s doctor, Petitioner was given a latex fixation test used in diagnosing arthritis. The test showed a titer result of one to eighty which Petitioner’s doctor interpreted as a “significant positive” indication of arthritis. However, in reviewing this same test, Respondent’s doctor judged the result to be a “borderline titer” and added that “[pjatients with a titer of 1:80 or less may fall into the group of idiopathic — without any known cause. . . . [W]hen I did my examination, I found no clinical evidence of rheumatoid arthritis. ”
On January 17, 1978, Petitioner’s doctor also had Petitioner’s left foot x-rayed. According to Petitioner’s doctor, the x-ray indicated “soft tissue swelling and degenerative changes of the first metatarsal phalangeal joint which is . . . the mid portion of the foot at the base of the great toe.” However, Petitioner’s doctor stated that Petitioner’s ankle injury “did not cause the arthritic condition.” Nevertheless, Petitioner ’s doctor opined that the arthritic condition was a pre-existing condition and concluded that the “injury caused a flare-up of the discomfort in the foot.” Additionally, Petitioner’s doctor reported that on examining Petitioner in June of 1978, Petitioner was found to have arthritis in his fingers and knuckles.
The foot x-ray ordered by Petitioner’s doctor and the medical testimony presented with respect to it
Finally, Petitioner’s doctor testified that while he was unfamiliar with Petitioner’s type of job, he could state that as of his examination of Petitioner on January 17,1978, Petitioner could not “do any work which actually involved use of the foot; in other words, . . . if he had to be on his foot... or standing a great deal or walking a great deal, he would not be able to do this. ...” When asked specifically whether with reasonable medical certainty, Petitioner could return to work as an attendant at a self-service gas station, Respondent’s doctor asserted that Petitioner “could return to that type of occupation.”
It is well established that in workmen’s compensation cases the referee must assess the credibility of the witnesses and weigh the evidence presented. City of Johnstown v. Workmen’s Compensation Appeal Board, 33 Pa. Commonwealth Ct. 464, 381 A.2d 1355 (1978); American Refrigerator Equipment Co. v. Workmen’s Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 377 A.2d 1007 (1977); Periodical Press Corp. v. Workmen’s Compensation Appeal Board, 17 Pa. Commonwealth Ct. 340, 331 A.2d 605 (1975). This Court “cannot say the workmen’s compensation authorities have capriciously disregarded
Nor can this Court support Petitioner’s further allegation that the referee disregarded unrebutted, competent medical evidence. Assuming arguendo that Respondent’s doctor failed to counter testimony supplied by Petitioner’s doctor, “[t]he referee need not accept expert medical testimony even though that testimony is uncontradicted.” Transue at 159, 365 A.2d at 896. Moreover, in the present case the referee obviously considered the evidence offered by Petitioner’s doctor since several of the referee’s findings of fact refer directly to the testimony of Petitioner’s doctor. The referee simply did not accept the opinion of Petitioner’s doctor with respect to the extent of Petitioner’s disability. “[T]he factfinder is not bound to accept as true any evidence unless that evidence is such that one of ordinary intelligence could not possibly challenge or entertain the slightest doubts as to its truth.” Pennwalt, Stokes Division v. Workmen’s Compensation Appeal Board, 44 Pa. Commonwealth Ct. 98, 102, 403 A.2d 186, 188 (1979) (emphasis in original) (citation omitted); Gateway Coal Co. v. Workmen’s Compensation Appeal Board, 36 Pa. Commonwealth Ct. 608, 388 A.2d 1122 (1978).
Therefore, we affirm the order of the Board denying additional total disability benefits to Petitioner, and we will enter the following
Obdeb
And Now, March 18, 1981, the order of the Workmen’s Compensation Appeal Board, dated September 20,1979, Docket No. A-76878, is hereby affirmed.
