27 Pa. Commw. 298 | Pa. Commw. Ct. | 1976
Opinion by
William Spear (claimant) was employed as a millwright in the maintenance division of the Philco Ford Corporation (employer) for a period of 30 years. His duties were physically demanding, often requiring the movement of heavy items of various types. On March 21, 1973, while moving a metal desk on a dolly in the course of his employment, Spear sustained a disabling back injury (1973 injury). After a period of absence from work necessitated by the injury, the claimant was examined by a company physician who ordered him to do less strenuous labor. The employer transferred the claimant to another plant where he attempt
Our scope of review in a workmen’s compensation case where the party with the burden of proof prevailed before the referee, and the Board took no additional evidence, is a limited one. We must determine only whether or not constitutional rights were violated, an error of law was committed, or a necessary finding of fact was unsupported by substantial evidence, leaving questions of evidentiary weight and credibility to the referee. Mikalonis v. Workmen’s Compensation Appeal Board, 25 Pa. Commonwealth Ct. 166, 361 A.2d 483 (1976).
The employer argues first that the claimant failed to present competent evidence to support his claim of disability from the injury of March 21, 1973. This argument arises from a conflict in the medical testimony presented by the parties before the referee. The claimant testified that he had suffered a similar back injury at work in April of 1970 (1970 injury). He presented as his medical witness the physician who had treated him for both the 1970 injury and the 1973 injury, and this physician, an orthopedic surgeon, testified that he diagnosed the 1970 injury as a ruptured disc which he had treated conservatively and which
Simply stated, the conflict in the medical testimony was whether or not the termination of the claimant’s employment resulted from the aggravation of the original injury in the 1973 incident or from the lingering symptoms of the 1970 injury, which had been only temporarily exacerbated by the 1973 injury. In a workmen’s compensation case, the referee determines the weight and credibility of the evidence and selects between conflicting medical testimony. Allied Chemical Corp. v. Workmen’s Compensation Appeal Board, 15 Pa. Commonwealth Ct. 195, 325 A.2d 482 (1974). The referee here chose to accept the testimony of the claimant’s physician and we find no error in his disregarding the testimony of the employer’s medical witness.
The employer argues next that, in awarding-the claimant maximum partial disability benefits, the referee capriciously disregarded competent evidence that work was available for the claimant within his physical limitations. It is the employer’s burden to prove the availability of work which a disabled employe is capable of performing. Barrett v. Otis Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968); Workmen’s Com
To constitute a capricious disregard of evidence, there must be a willful and deliberate overlooking of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching the result. Sherred v. Pittsburgh, 7 Pa. Commonwealth Ct. 401, 299 A.2d 381 (1973). We do not find that here.
Accordingly, we affirm the decision of the Board.
Order
And Now, this 3rd day of December, 1976, the order of the Workmen’s Compensation Appeal Board, dated February 10,1976, is hereby affirmed.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §1 et seq.