Opinion
Argued October 30, 1975
January 15, 1976.
Workmen's compensation — Scope of appellate review — Violation of constitutional rights — Error of law — Findings of fact — Substantial evidence — Referee — Notice of injury — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736 — Accident — Words and phrases — Unusual pathological result — Weight — Credibility — Medical evidence — Conflicting evidence.
1. In a workmen's compensation case where the party with the burden of proof prevailed below, review by the Commonwealth Court of Pennsylvania is to determine whether constitutional rights were violated, an error of law was committed or a necessary finding of fact was unsupported by substantial evidence, and findings by the referee thus supported are binding on the Workmen's Compensation Appeal Board and the reviewing court where the Board took no additional evidence. [5]
2. Findings of the workmen's compensation authorities that proper and timely notice of the injury was given the employer as required by The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P.L. 736, will not be disturbed on appeal. [5-6]
3. A workmen's compensation claimant could establish the occurrence of an accident under the unusual pathological result doctrine by proving that an unexpected injury was caused by a definable event or series of events while performing his usual work and the occurrence of a break or change in physical structure or body tissue. [6]
4. It is for the fact finder in a workmen's compensation case to judge the weight and credibility of evidence and his decision to accept the testimony of one competent medical witness and reject testimony to the contrary by another will not be disturbed on appeal. [6]
Argued October 30, 1975, before Judges CRUMLISH, JR., KRAMER, and MENCER, sitting as a panel of three.
Appeal, No. 348 C.D. 1975, from the Order of the Workmen's Compensation Appeal Board in case of George H. Miller v. Edgewater Steel Company, No. A-69128.
Petition with Department of Labor and Industry for disability benefits. Benefits awarded. Employer and insurance carrier appealed to the Workmen's Compensation Appeal Board. Award affirmed. Employer and insurance carrier appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed. Petition for reargument filed and denied.
Thomas J. Ferris, with him Clem R. Kyle, for appellants.
Thomas P. Geer, with him James N. Diefenderfer, for appellees.
This is an appeal by Edgewater Steel Company, employer, and Liberty Mutual Insurance Company, insurance carrier, (Appellants) from an opinion and order of the Workmen's Compensation Appeal Board (Board) affirming the referee's award of workmen's compensation benefits to George H. Miller (Claimant). We affirm.
Claimant was an employee of the Edgewater Steel Company from October 1940 to May 1971. For a majority of those years, he had been classified as a Class "A" Machinist. His work required repeated lifting of metal rings which weighed between forty (40) and sixty (60) pounds from the floor behind where he was standing and placing them on the lathe in front of him. On May 10, 1971, Claimant experienced pain in his lower back while performing his ordinary and regular work in his usual manner. The referee in awarding compensation found, inter alia, that Claimant was injured in the course of his employment, the injury was properly reported, and he is totally disabled as a result of his accidental injury.
This work entailed standing before his lathe machining rings, which he took from a pile on the floor behind him. In order to put a new ring on the machine, he turned, twisted, stooped, lifted the ring and turned back toward the lathe with the ring.
The question presented is: Was there sufficient competent evidence to establish notice to the employer, the occurrence of an accident, the injury and resulting disability?
Where, as here, the Claimant having the burden of proof "prevailed before the referee and the Board did not receive additional evidence . . . our scope of review is limited to a determination of whether or not any constitutional rights were violated, an error of law was committed, or any necessary findings of fact, as found by the referee, were unsupported by substantial evidence. See Reed v. Glidden Company, 13 Pa. Commw. 343, 318 A.2d 376 (1974). If the findings of the referee are supported by sufficient competent evidence, and the Board did not take additional testimony, then those findings are binding on the Board and on this Court. See Universal Cyclops Corp. v. Krawczynski, 9 Pa. Commw. 176, 305 A.2d 757 (1973)." Lisi v Workmen's Compensation Appeal Board, 17 Pa. Commw. 294, 296, 331 A.2d 252, 254 (1975).
Appellant raises three contentions. First, Claimant failed to give his employer proper and timely notice of the injury as required by the Statute. The referee found and the record supported his findings that Claimant notified his foreman immediately after the injury. In Reed, supra, we said that when a co-worker on behalf of the Claimant informed the foreman of the injury, the company had sufficient notice. We find no lack of notice here when the worker, himself, informed the foreman of his injury.
The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 631, 632, 633.
Second, Appellant contends that there is absolutely no credible evidence that the Claimant suffered an accident in the course of his employment. We do not agree. Under the unusual pathological result doctrine, a claimant establishes an accident by proving the occurrence of an unexpected injury caused by a definable event or series of events while performing his usual work and the occurrence of a break or change in the physical structure or body tissue. Workmen's Compensation Appeal Board v. Hamilton, 21 Pa. Commw. 425, 428, 346 A.2d 387, 389 (1975). In the instant case, Claimant testified that he injured his back while performing his routine job assignment. He also introduced expert medical testimony that his lower back was injured. The medical expert also testified that the injury occurred while Claimant was working his lathe at Edgewater Steel.
Since it is for the referee to determine the weight and credibility of the evidence, Mertz v. Mellon National Bank and Trust Company, 11 Pa. Commw. 541, 314 A.2d 570 (1974), and since the referee believed both the testimony of the Claimant and his medical expert, there is sufficient evidence to establish the occurrence of an unexpected injury.
Appellant's final contention is that Claimant's disability was the result of excessive use of alcohol and not the back injury. The referee in hearing the testimony chose to believe Claimant's medical expert who testified that as a result of his injury while operating the lathe, he was totally disabled, over Appellant's expert who contended that the back pain and disability were the result of excessive use of alcohol. Our review of the record leads us to conclude that the referee's findings of fact are based on substantial credible evidence and therefore,
ORDER
AND NOW, this 15th day of January, 1976, the opinion and order of the Workmen's Compensation Appeal Board is affirmed and the appeal dismissed.