Williams v. Workmen's Compensation Appeal Board

Dissenting Opinion by

Judge Barbieri:

1 regretfully must dissent. While the majority would characterize this case as one involving the *344resolution of conflicting evidence, a careful review of the record shows that what conflicting evidence there was was over trivial points and not over the ultimate issue of whether a compensable work related injury occurred.

Before the referee, Claimant testified that he injured his back on October 26, 1979, pulling a quarter inch steel slab out from under a one inch slab, and that he subsequently went home after informing his foreman of the injury. This testimony was corroborated by the testimony of the two fellow employees who had been working with Claimant at the time of the injury. Claimant also testified that while he returned to work the following day, fellow employees had to “cover” for him and that he subsequently left work on November 1, 1979 after his foreman discovered him not working. A deposition for Claimant’s treating physician, Dr. Jon D. Polocavich, was offered into evidence and Dr. Polocavich stated in his testimony that he believed Claimant to be totally disabled by a severe lumbosacral and thoracic sprain, complicated by a muscle spasm, which was caused by his injury at work. Additional evidence was submitted by Claimant establishing the medical treatments he had received, some of them painful, since his injury.

Claimant’s employer, for its part, presented the testimony of a single witness, Stanley R. Palmer, Claimant’s foreman. While Mr. Palmer denied receiving notice of Claimant’s accident on the date of the injury, he admitted that he overheard Claimant saying he had injured his back and that Claimant had told him “I’m going home and soak my back in the tub so I can work on Saturday. I don’t want to miss my overtime.” Mr. Palmer further testified that he had found Claimant asleep on November 1, 1979, and *345that Claimant had told him that he was going home because his back was bothering him. The only other evidence submitted by Claimant’s employer was a hearsay statement from a Dr. Ruben Tenicela which Claimant’s attorney withdrew his objection to in order to expedite the proceedings below. In this statement Dr. Tenicela does not state that Claimant is not disabled, but instead opines that Claimant “is in my opinion trainable in being able to at least try a light duty type of job. ”

In his decision the referee reviewed the evidence noted above, stated that “[t]he question of credibility is basic herein[,]” further found “the witnesses and evidence of the defendant to be more credible than that of the claimant[,]” and denied benefits. Since the evidence submitted by Claimant’s employer did not significantly conflict with the evidence submitted by Claimant, however, I believe that the referee erred by denying benefits on the ground that he found the employer’s witnesses to be more credible. In my view, where there is no conflict on the basic facts at issue, to raise a question of credibility is frivolous.

“To constitute a capricious disregard of evidence there must be a willful and deliberate overlooking of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching the result.” Workmen’s Compensation Appeal Board v. Philco Ford Corp., 27 Pa. Commonwealth Ct. 298, 302, 366 A.2d 620, 623 (1976). In light of the unanimous testimony of the witnesses that Claimant suffered a work related injury, the obvious causal relationship between his disability and his work related accident, supported by unequivocal and uncontradicted medical opinion, and the complete *346absence of any evidence suggesting that Ms disability was not work related, I would conclude in tbe present case that the referee capriciously disregarded evidence of a compensable work related injury, and I would therefore remand for an award of benefits and attorneys ’ fees.