56 Pa. Commw. 72 | Pa. Commw. Ct. | 1981
OniNioN by
John Runicki has appealed from an order of the Workmen’s Compensation Appeal Board (Board) affirming a referee’s decision dismissing Kunicki’s Reinstatement and/or Modification Petition.
On February 21, 1964, Runicki suffered a compen-sable injury to his back while in the employ of Frank Felice. Runicki received total disability payments under a compensation agreement from 1964 until May 1969, with the exception of five months in 1967 when he returned to work. From May 1969 until February 1976, Runicki was paid permanent partial disability benefits. After the partial disability payments expired,
A referee’s hearing was held on Kunicki’s petition. Runicki and his emanicipated daughter testified concerning the progressive worsening of Kunicki’s back problems. Runicki also presented the testimony of Dr. Druffner, a general practitioner, who began treat
Kunicki contends tbat tbe referee’s findings of fact cannot be sustained without a capricious disregard of competent evidence, especially tbe testimony of Dr. Druffner, which was uncontroverted and unequivocal. "We do not agree. “[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 avoid in reaching a result. ’ ’ Ney v. Workmen’s Compensation Appeal Board, 15 Pa. Commonwealth Ct. 381, 384, 327 A.2d 402, 403 (1974). Tbe referee ’s decision shows tbat tbe referee did not willfully and deliberately disregard Dr. Druffner’s testimony, for tbe decision carefully summarizes Dr. Druffner’s testimony and expressly states tbat the referee bas evaluated this testimony. Tbe referee “bas wide latitude in weighing the probative value of offered evidence” and need not accept as true even uncontro-verted testimony. Priddy v. Workmen’s Compensation Appeal Board, 41 Pa. Commonwealth Ct. 627, 629, 399 A.2d 1189, 1190 (1979). Evidently, tbe referee, as
The record shows this case to be close indeed, but it must be remembered that Kunicki had the burden of proving an increase in his disability by precise and credible evidence of a more definite and specific nature than that required to obtain compensation initially. Pittsburgh, Des Moines Steel Co. v. Workmen’s Compensation Appeal Board, 31 Pa. Commonwealth Ct. 530, 534, 377 A.2d 833, 835. The referee found that Kunicki’s evidence did not meet this standard. We cannot reverse the referee in this case without directly infringing upon the firmly established discretion vested in the referee to assign weight and credibility to evidence.
Kunicki next contends that the films placed into evidence by Felice were legally insufficient to defeat his claim of total disability. The films were properly authenticated and identified. They were thus admissible into evidence and it was for the referee to determine their probative value. John B. Kelly Co., Inc. v. Davis, 8 Pa. Commonwealth Ct. 589, 592, 303 A.2d 255, 257 (1973).
Finally, Kunicki says that the referee erred by setting forth contrary positions in findings of fact 5 and 6, without resolving which position was correct. Both of these findings are concerned with whether or not Kunicki’s petition was timely filed. In finding of fact 5, the referee quoted Felice’s position that Kunicki’s petition was barred by the 350 week limitation of Section 306(b) of The Pennsylvania Workmen’s Compensation Act, supra, note 1. Finding of fact 6 states Kunicki’s position that he had two years after the last payment to file his petition. While the referee did not expressly state which position he believed to be correct, his action of reaching the merits of the case and deciding the matter on the merits necessarily contains an implicit resolution of this conflict in favor of Kunicki. We do not believe that the referee’s failure to expressly resolve this issue requires reversal, particularly where the implied resolution by the referee benefits the complaining party.
Order
A.ND Now, this 13th day of January, 1981, the order of the Workmen’s Compensation Appeal Board, dated September 20, 1979, affirming the referee’s decision dated March 14, 1978, is affirmed.
Section 806(b) of The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.S. 736, as amended, 77 P.S. §512, at the time of Kunicki’s injury provided that payment for partial disability shall not continue for more than 350 weeks.
The referee treated Kunieki’s petition as one for reinstatement and/or modification.
Films alone cannot sustain the burden of proving a lack of disability. John B. Kelly Co., Inc., supra. In the instant case, however, Felice did not have the burden of proving that Kunicki was not