13 Pa. Commw. 45 | Pa. Commw. Ct. | 1974
Opinion By
This is an appeal by Foster Wheeler Corporation (Foster) and its insurance carrier, Liberty Mutual Insurance Company, from an order of the Workmen’s Compensation Appeal Board (Board) affirming a referee’s dismissal of Foster’s petition to terminate compensation to Joseph Lengen (Lengen).
On July 2, 1968, Lengen was injured while in the course of his employment with Foster. On July 1, 1969, Lengen and Foster entered into an agreement for compensation for disability pursuant to provisions of The Pennsylvania Workmen’s Compensation Act.
Our scope of review in this type of case is limited to a determination of whether constitutional rights were violated, an error of law was committed, or any necessary finding of fact was unsupported by substantial competent evidence. Page’s Department Store v. Workmen’s Compensation Appeal Board, 11 Pa. Commonwealth Ct. 126, 309 A. 2d 169 (1973). And where, as here, the Board has adopted the findings and conclusions of the referee and has found against the party having the burden of proof, review by this Court is to determine whether the findings are consistent with each other and with the conclusions of law and the Board’s order and can be sustained without a capricious disregard of competent evidence. Wilkes-Barre Iron & Wire Works, Inc. v. Workmen’s Compensation Appeal Board, 9 Pa. Commonwealth Ct. 612, 309 A. 2d 172 (1973).
Foster bases his argument on the testimony of his expert witness, Dr. J. George Jonas. Dr. Jonas testified that Lengen exhibited no evidence of disability other than an arthritic condition which he suspected to be Marie-Strumpell’s disease. On the basis of this testimony, Foster argues that the referee’s findings and conclusions (subsequently adopted by the Board), that Lengen is still disabled as a result of his accident and that Foster has failed to show otherwise, are a capricious disregard of competent evidence.
A review of the record compels the conclusion that there was no capricious disregard of competent evidence on the part of the referee. Dr. Jonas’ testimony was rebutted by the testimony of Lengen’s expert witness, Dr. Randolph Blodgett, who stated unequivocally that Lengen did not have Marie-Strumpell’s disease. The referee apparently chose to accept Dr. Blodgett’s testimony and rejected that of Dr. Jonas. This was within his power as fact finder. Elisabeth Hoy v. From Lingerie, 9 Pa. Commonwealth Ct. 542, 308 A. 2d 640 (1973).
A capricious disregard of competent evidence occurs when there 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. Wilkes-Barre Iron & Wire Works, Inc. v. Workmen’s Compensation Appeal
We therefore issue the following
Order
And Now, this 16th day of April, 1974, the July 30, 1973 order of the Workmen’s Compensation Appeal Board, relative to the claim of Joseph Lengen, is hereby affirmed.
Act of June 2,1915, P. L. 736, as amended, 77 P.S. §1 et seq.