Opinion
Argued July 31, 1974
September 5, 1974.
Workmen's compensation — Petition to terminate agreement — Burden of proof — Disability — Scope of appellate review — Consistent findings — Capricious disregard of competent evidence — Inferences — Weight of evidence — Credibility — Uncontradicted testimony — Lay testimony — Medical expert.
1. An employer seeking to terminate a workmen's compensation agreement has the burden of proving that the condition of disability which was the subject of the agreement has ceased. [271]
2. In a workmen's compensation case where the decision of the compensation authorities is against the party with the burden of proof, review by the Commonwealth Court of Pennsylvania is to determine whether the findings were consistent with each other and with the conclusions of law and the order and whether the decision can be sustained without a capricious disregard of competent evidence, viewing the evidence most favorably to the party prevailing below and leaving questions of evidentiary weight and credibility to the fact finder, who may refuse to accept even uncontradicted testimony of any witness. [271]
3. Testimony of an employe, establishing the existence of physical symptoms and an inability to perform certain tasks, is sufficient to support a finding of continued disability, although a competent medical expert testifies to a complete absence of any objective evidence of a disabling neurological injury. [272-3]
Argued July 31, 1974, before Judges WILKINSON, JR., MENCER and ROGERS, sitting as a panel of three.
Appeal, No. 218 C.D. 1974, from the Order of the Workmen's Compensation Appeal Board in case of Mabel Oliver v. Pomeroy's Inc., No. A-67752.
Petition with Department of Labor and Industry to terminate workmen's compensation agreement. Petition dismissed. Petitioners appealed to the Workmen's Compensation Appeal Board. Determination of referee affirmed. Appeal dismissed. Petitioners appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Andre Delgalvis, with him Joseph R. Thompson, for appellants.
Leonard J. Gajewski, with him James N. Diefenderfer, for appellees.
This is an appeal by Pomeroy's Inc. and its insurance carrier from an order of the Workmen's Compensation Appeal Board (Board), which affirmed the referee's denial of the appellants' petition to terminate a compensation agreement between the appellants and Mabel Oliver.
The appellants had the burden to show that Mrs. Oliver's previously agreed to condition of total disability had ceased. Where the decision of the compensation authorities is against the party having the burden of proof, our review is for the purpose of determining whether the findings are consistent with each other and with the conclusions of law and the order and whether the determination below can be sustained without a capricious disregard of competent evidence. Patterson v. Lenart, 9 Pa. Commw. 116, 305 A.2d 778 (1973). We view the evidence in the light most favor able to the party who prevailed below. The fact finder is not required to accept the testimony of any witness even though it is uncontradicted. Hiram Wible Son v. Keith, 8 Pa. Commw. 196, 302 A.2d 517 (1973). The weight and credibility of the evidence, including medical evidence, is for the referee. Mertz v. Mellon National Bank Trust Co., 11 Pa. Commw. 541, 314 A.2d 570 (1974).
After a thorough review of the record, we affirm the Board's order.
Mrs. Oliver was employed by Pomeroy's for fifteen years. She was injured on January 6, 1971, due to the malfunctioning of an elevator which she was then operating. The appellants' petition for termination of the agreement for compensation which the parties entered into on February 16, 1971 alleged that Mrs. Oliver's disability had ceased on June 1, 1971. The appellants' case for termination rested on the testimony of Dr. Phillip Goldfedder, a neurosurgeon who treated Mrs. Oliver. He testified that he first saw her on January 20, 1971. She then complained of pain in her right shoulder, right side of her neck, right scapular area, radiation into the right elbow and paresthesia or numbness of the right hand. Dr. Goldfedder's examination disclosed tenderness in the neck region and possible weakness of the triceps and biceps muscles. He prescribed various physiotheraphy measures and continued to see Mrs. Oliver professionally. At the referee's hearing lie expressed the opinion that as of June 23, 1971, Mrs. Oliver was physically able to return to work on a part-time basis. He further testified that he was unable to find any objective evidence of neurological injury and that he concluded that Mrs. Oliver was by July 23, 1971 able to return to work on a full-time basis. The record reveals, however, that on November 8, 1971 Mrs. Oliver was still complaining of numbness of her hands, radicular pain in the right upper extremity involving the arm and forearm, and increasing neck pain. On account of these complaints, Dr. Goldfedder advised that she be admitted to a hospital for tests. These were performed in December 1971, and all proved negative. On cross-examination, Dr. Goldfedder conceded that it was possible for the claimant to be suffering from pain as the result of her injuries that do not reveal themselves in tests and examinations.
The claimant at the hearing conducted in August 1972 testified that she had difficulty walking, that she was unable to lift or carry objects, and that, not only could she not go back to work but she was unable to do her housework.
The referee credited Mrs. Oliver's account of her condition of disability rather than Dr. Goldfedder's opinion, based on his findings. This choice was the referee's to make and was not, we believe, a capricious disregard of competent evidence.
ORDER
AND NOW, this 5th day of September, 1974, the defendant, Pomeroy's Inc., and Liberty Mutual Insurance Company, its insurance carrier, are directed to pay to the claimant, compensation for total disability at the rate of $45.81 per week, beginning June 30, 1971 and continuing thereafter during total disability; together with interest at the rate of six (6%) per cent per annum on all unpaid installments from the due date thereof.