Opinion
Argued June 7, 1982
January 4, 1983.
Workmen's compensation — Petition to terminate — Capricious disregard of competent evidence — Uncontradicted medical testimony — Rehearing.
1. A workmen's compensation referee is properly found to have capriciously disregarded competent evidence in denying a petition to terminate in face of competent medical testimony presented by both parties that all disability related to the compensable injury had ceased when no countervailing evidence was produced and when no basis existed for challenging the credibility of the experts. [27]
2. The granting or denial of a rehearing is within the discretion of the Workmen's Compensation Appeal Board, and the Board does not abuse that discretion in denying a rehearing sought merely to strengthen weak proof previously offered. [27]
Argued June 7, 1982, before President Judge CRUMLISH, JR. and Judges WILLIAMS, JR. and DOYLE, sitting as a panel of three.
Appeals, Nos. 1765 C.D. 1979 and 823 C.D. 1980, from the Orders of the Workmen's Compensation Appeal Board in case of Harlee Marshall v. Temple University, No. A-75942.
Petition to the Department of Labor and Industry to terminate workmen's compensation benefits. Petition dismissed. Employer and insurer appealed to the Workmen's Compensation Appeal Board. Benefits terminated. Petition for rehearing filed and denied. Claimant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Gerald J. Haas, for petitioner.
Ronald F. Bové, Swartz, Campbell Detweiler, for respondent, Temple University.
Harlee Marshall appeals a Workmen's Compensation Appeal Board order reversing a referee's decision and terminating compensation. We affirm.
Marshall, a Temple University maintenance man, received benefits after sustaining a back injury in a fall. Temple later filed a termination petition, alleging that Marshall's disability, although continuing, was no longer related to the injury. The referee denied the petition, deciding that Temple had not met its burden of proving the claimant's existing disability was not the result of the injury. The Board reversed, concluding that the referee's decision was made in capricious disregard of competent evidence. Marshall appealed.
Since the existence of Marshall's disability was not in issue before the referee, Temple bore the burden of proving an absence of causal connection between the disability and the compensable injury. George v. Workmen's Compensation Appeal Board, 63 Pa. Commw. 23, 437 A.2d 521 (1981).
Capricious disregard of competent evidence in a workmen's compensation case is willful, deliberate disbelief of an apparently trustworthy witness, whose testimony one has no basis to challenge. Brayo v. Workmen's Compensation Appeal Board, 62 Pa. Commw. 234, 435 A.2d 1346 (1981).
Our scope of review where, as here, the party with the burden of proof did not prevail before the referee includes examining whether the Board erred in determining whether or not the referee's findings were made in capricious disregard of competent evidence and, also, whether the Board committed other errors of law. Workmen's Compensation Appeal Board v. Young, 18 Pa. Commw. 515, 336 A.2d 665 (1975).
Marshall argues that the Board erred in finding that the referee had capriciously disregarded competent evidence because the evidence proffered at the hearing was conflicting. We disagree. The medical experts of both parties testified that, in their opinions, the existing disability was not the result of the injury sustained in the fall, but of the natural progress of Marshall's pre-existing degenerative joint and intervertebral disc diseases. A review of the record has disclosed no countervailing evidence. The Board properly concluded that the referee capriciously disregarded competent evidence because the record does not support his conclusion, but indeed supports a contrary one due to the absence of any valid basis for challenging the credibility of the expert testimony. Beth-Allen Ladder Co. v. Workmen's Compensation Appeal Board, 53 Pa. Commw. 323, 417 A.2d 854 (1980).
We have examined the specific points of apparent testimonial conflict noted in claimant's brief and have found, upon examination of the testimony as a whole, an absence of significant, actual conflict.
The Board's statement to the effect that Marshall introduced no countervailing evidence is not, as Marshall contends, evidence of an erroneous shift in the burden of proof to the claimant, but merely the Board's recognition of the fact that none of the evidence presented, including that of the claimant, supported the referee's determination.
Marshall also argues that the Board's refusal to grant a rehearing to allow him to introduce additional medical testimony was erroneous. This contention is without merit. The decision to grant or deny a rehearing is solely in the Board's discretion and will only be reversed for an abuse of that discretion. Anderson v. Workmen's Compensation Appeal Board, 51 Pa. Commw. 582, 414 A.2d 774 (1980). The Board did not abuse its discretion in denying a rehearing requested merely to strengthen weak proofs previously offered. Pennsylvania Glass-Sand Corp. v. Workmen's Compensation Appeal Board, 46 Pa. Commw. 377, 407 A.2d 76 (1979).
Affirmed.
ORDER
The Workmen's Compensation Appeal Board orders, Nos. A-75942 and Rehear. 3890, dated August 2, 1979 and March 12, 1980, respectively, are hereby affirmed.