Opinion
Argued September 29, 1978
January 25, 1979.
Workmen's compensation — Credibility — Words and phrases — Capricious disregard of competent evidence — Referee.
1. In a workmen's compensation case the referee is the ultimate factfinder unless the Workmen's Compensation Appeal Board takes additional testimony and is the judge of the credibility of witnesses. [119]
2. A referee as factfinder in a workmen's compensation case will not be found to have capriciously disregarded competent evidence unless it is demonstrated that he has wilfully and deliberately disbelieved an apparently trustworthy witness whose testimony one of ordinary intelligence could not possibly challenge. [119]
Argued September 29, 1978, before Judges WILKINSON, JR., DiSALLE and MacPHAIL, sitting as a panel of three.
Appeal, No. 2149 C.D. 1977, from the Order of the Workmen's Compensation Appeal Board in case of Emma Jean Smith v. Blue Ridge Winkler Textiles, No. A-73083.
Petition with the Department of Labor and Industry for workmen's compensation benefits. Petition denied. Petitioner appealed to the Workmen's Compensation Appeal Board. Denial affirmed. Petitioner appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Philip D. Lauer, for petitioner.
John P. Lenahan, with him Lenahan, Dempsey, Murphy Piazza, and James N. Diefenderfer, for respondents.
Emma Jean Smith (Claimant) seeks workmen's compensation benefits as a result of an injury she allegedly sustained on September 26, 1975. She testified that she stepped in a hole on the floor where she was working and injured her back. She had been denied benefits by the referee and the Workmen's Compensation Appeal Board (Board). The sole issue is whether the accident ever happened.
Claimant raises before us the issue of whether the referee properly conducted the hearings. However, since this issue was not raised before the Board, it is therefore deemed to be waived. United States Steel Corp. v. Workmen's Compensation Appeal Board, 9 Pa. Commw. 281, 305 A.2d 913 (1973).
In the referee's findings of fact he states:
23. The Referee finds that Claimant's testimony concerning the occurrence of a work-related fall on September 26, 1975 and her testimony that she never had a pain in her back prior to September 26, 1975 to be unworthy of belief.
The referee is the ultimate fact-finder unless the Board takes additional testimony. Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commw. 176, 305 A.2d 757 (1973). However, the referee may not capriciously disregard competent evidence. A capricious disregard of competent evidence is a willful and deliberate disbelief of an apparently trustworthy witness whose testimony one of ordinary intelligence could not possibly challenge. St. Denis v. Workmen's Compensation Appeal Board, 29 Pa. Commw. 375, 371 A.2d 252 (1977). In its opinion, the Board in the case now before us carefully reviewed all of the relevant testimony and concluded that the referee's failure to believe the Claimant was not a capricious disregard of any evidence, but rather that the referee was merely exercising his prerogative.
After our own careful review of the record, we cannot hold as a matter of law that the Claimant's testimony was such that a person of ordinary intelligence could not challenge it. There are simply too many unexplained omissions and inconsistencies in that testimony.
Accordingly, we affirm.
ORDER
AND NOW, this 25th day of January, 1979, the order of the Workmen's Compensation Appeal Board, dated October 27, 1977, affirming the referee's denial of benefits is affirmed.