Opinion
Argued November 21, 1980
February 26, 1981.
Workmen's compensation — Hospital records — Uniform Business Records as Evidence Act, Act of May 4, 1939, P.L. 42 — The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736 — Hearsay — Scope of appellate review — Burden of proof — Credibility — Doctor.
1. In workmen's compensation cases, hospital records are admissible into evidence as an exception to the hearsay rule under both Section 2 of the Uniform Business Records as Evidence Act, Act of May 4, 1939, P.L. 42, and Section 422 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736. [119]
2. In a workmen's compensation case, where the facts are sufficiently established by circumstantial evidence, hearsay testimony, if not inconsistent, may be considered for the additional light, if any, that it throws upon the matter. [119]
3. In a workmen's compensation case, because the claimant has the burden of proof below, where the claimant does not prevail before the Workmen's Compensation Appeal Board, the referee's findings must be sustained if there was no capricious disregard of competent evidence; the Commonwealth Court of Pennsylvania must examine the record to determine whether the referee, in reaching his decision, wilfully or deliberately disbelieved an apparently trustworthy witness favorable to the claimant whose testimony one could not possibly challenge. [120]
4. The fact that a workmen's compensation referee believes the testimony of one doctor over that of another is not a capricious disregard of evidence. [120]
Argued November 21, 1980, before Judges MENCER, CRAIG and PALLADINO, sitting as a panel of three.
Appeal, No. 1494 C.D. 1979, from the Order of the Workmen's Compensation Appeal Board in the case of Wilbert Thomas v. Consolidation Coal Company and Commonwealth of Pennsylvania, No. A-75606.
Application to the Department of Labor and Industry for workmen's compensation benefits. Application denied. Applicant appealed to the Workmen's Compensation Appeal Board. Appeal denied. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Margaret Bloush, with her J. Scott Leckie, and Kenneth J. Yablonski, for petitioner.
Daniel L. Fassio, with him Andrew Schmidt, Michael W. Balfe, and Andrew Rose, Rose, Schmidt, Dixon, Hasley, Whyte Hardesty, for respondent, Consolidation Coal Company.
In this workmen's compensation appeal, the sole issue is whether the referee's decision denying benefits is deficient as a matter of law because the referee failed to rule on the admissibility of hospital records offered by the defendant. We hold that it is not and affirm.
Wilbert Thomas (claimant) filed a petition claiming that he was totally disabled due to coal worker's pneumoconiosis. At the hearing, both claimant and Consolidation Coal Company (employer) introduced conflicting testimony from doctors. In addition, employer sought to introduce some hospital records of claimant. Claimant objected on hearsay grounds, and the referee reserved his ruling. The referee's decision denying the claim made no mention of the disputed hospital records, and claimant appealed. Upon the Board's affirmance, this appeal followed.
Claimant's argument is meritless. It is a long-established rule that hospital records are admissible into evidence as an exception to the hearsay rule, under both Section 2 of the Uniform Business Records as Evidence Act and Section 422 of The Pennsylvania Workmen's Compensation Act. Scannella v. Salerno Importing Co., 2 Pa. Commw. 11, 275 A.2d 907 (1971).
Act of May 4, 1939, P.L. 42, formerly 28 P.S. 91b, repealed by Section 2(a) of the Judiciary Act Repealer Act, Act of April 28, 1978, P.L. 202, 42 Pa.C.S.A. § 20002(a) [1212]. A similar provision is now found at 42 Pa. C. S. § 6108(b).
Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 835.
Even if the records were hearsay not subject to an exception, nevertheless our Supreme Court has held that, where the facts are sufficiently established by circumstantial evidence, hearsay testimony, if not inconsistent, may be considered for the additional light, if any, that it throws upon the matter. Cody v. S.K.F. Industries, Inc., 447 Pa. 558, 291 A.2d 772 (1972). See also Hatboro-Horsham School District v. Workmen's Compensation Appeal Board, 35 Pa. Commw. 73) 384 A.2d 1050 (1978); Nesbit v. Vandervort Curry, 128 Pa. Super. 58, 193 A. 393 (1937). Here, the hearsay testimony was not inconsistent with the testimony of three employer doctors who independently and directly established adequate support for the referee's findings.
We must also keep in mind our scope of review in this situation because it affects the validity of claimant's argument. Since claimant had the burden of proof below and did not prevail, we must sustain the referee's findings if they can be sustained without a capricious disregard of competent evidence. Jones Laughlin Steel Corp. v. Workmen's Compensation Appeal Board, 52 Pa. Commw. 436, 415 A.2d 1275 (1980). Employer, not having the burden of proof, had no obligation to present evidence. Thus, in fulfilling our scope of review obligation, we must examine the record to determine whether the referee, in reaching his decision, wilfully or deliberately disbelieved an apparently trustworthy witness favorable to claimant whose testimony one could not possibly challenge. American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, 31 Pa. Commw. 590, 377 A.2d 1007 (1977).
In view of the fact that employer presented the testimony of three doctors, all of whom stated that claimant was not disabled, we cannot say that the referee capriciously disregarded competent testimony supporting claimant's contention that he was disabled. It is axiomatic that questions of credibility are left to the referee, Workmen's Compensation Appeal Board v. Quick, 25 Pa. Commw. 203, 359 A.2d 852 (1976), and the fact that the referee believes the testimony of one doctor over that of another is not a capricious disregard of the evidence. Stouffer v. Jones Motor Co., 54 Pa. Commw. 58, 419 A.2d 820 (1980).
Accordingly, we enter the following
ORDER
NOW, this 26th day of February, 1981, the order of the Workmen's Compensation Appeal Board, dated June 21, 1979, affirming the referee's denial of benefits to Wilbert Thomas, is hereby affirmed.