Appeals, Nos. 105 and 121, Oct. T., 1962, from order of Court of Common Pleas No. 3 of Philadelphia County, March T., 1961, No. 25, in case of Ann Lind v. Argo Lamp Company et al. Order reversed.
Lowell A. Reed, Jr., with him Paul H. Ferguson, for appellant.
Herbert H. Hadra, with him Maurice Freedman, and Robert H. Arronson, for claimant, appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 198 Pa. Super. Page 248]
This is a workmen's compensation case. We are here concerned with appeals by both the employer and the claimant from an order of Court of Common Pleas No. 3 of Philadelphia County remanding the record to the Workmen's Compensation Board for further proceedings. The actual question before us is the extent of the power of the court below to review a decision of the Board. The case has had a prolonged procedural history resulting in an extensive record.
[ 198 Pa. Super. Page 249]
On July 31, 1956, Ann Lind sustained an accidental injury while in the employ of the Argo Lamp Company, Philadelphia, Pennsylvania. She filed a claim petition on November 9, 1957, in which the accident was described as follows: "Caught foot under defective metal plate and injured right foot". At a hearing on May 27, 1957, before Referee Tetlow, Dr. Theodore Liljestrand testified that claimant was disabled due to "tenosynovitis". Dr. William Tomasco testified for the employer that claimant was not disabled as a result of the accident. On March 7, 1958, the Referee filed an award directing the payment of compensation to November 27, 1956. Claimant thereupon appealed to the Workmen's Compensation Board, which tribunal remanded the record to the Referee for the appointment of an impartial medical expert. At a hearing before Referee Mulligan on April 11, 1960, Dr. Abraham Myers, the impartial physician, testified that claimant was not disabled at the time of his examination and suggested the possibility of malingering. Dr. Jacob Krause, testified to the contrary that claimant was partially disabled as a result of "a meniscoid of the right fibular astragular joint". On April 29, 1960, the Referee awarded compensation for total disability from July 31, 1956 to November 26, 1956, and for partial disability thereafter. Both claimant and the employer appealed to the Board. On February 15, 1961, after a complete review of the record, the Board vacated the Referee's findings of fact and substituted the following: "2. The Board finds that claimant's injury occurring on July 31, 1956 was a bruised right ankle and foot with a bad sprain of the right ankle. 3. The Board further finds that, as a result of the aforesaid accidental injury, the claimant was partially disabled from July 31, 1956 up to and including March 11, 1957. 4. The Board finds that all disability of claimant ceased as of March 11, 1957". In conformity with the quoted findings, the Board awarded
[ 198 Pa. Super. Page 250]
compensation for partial disability to March 11, 1957. Claimant then appealed to the court of common pleas, asserting that she had continuing total disability.
The rule is now firmly established by a long line of cases that, where the decision of the Board is against the party having the burden of proof, the question before the court is whether the Board's findings of fact are consistent with each other and with its conclusions of law and its order, and can be sustained without a capricious disregard of the competent evidence. Unless the answer is in the negative, the order must be affirmed. See Newman v. Congregation of Mercy and Truth, 196 Pa. Superior Ct. 350, 175 A.2d 160; Rodgers v. Methodist Episcopal Hospital, 188 Pa. Superior Ct. 16, 145 A.2d 893. The burden was on this claimant to prove all the elements of her case, Wehr v. Philadelphia Derrick & Salvage Corp., 192 Pa. Superior Ct. 161, 159 A.2d 924, including the extent and length of her disability: Bowers v. Schell's Bakery, 152 Pa. Superior Ct. 112, 31 A.2d 442. Since the Board found against the claimant, the evidence must be viewed in the light most favorable to the employer: Hurlburt v. Fidelity Window Cleaning Co., 192 Pa. Superior Ct. 152, 160 A.2d 251.
The difficulty experienced by the learned court below in the instant case apparently stems from its personal view that the testimony of Dr. Myers was entitled to little weight. However, the weight of the evidence is not a matter for the court to determine: Kiska v. C. H. Ziegenfuss Co., 154 Pa. Superior Ct. 100, 35 A.2d 532; Gallihue v. Auto Car Co., 184 Pa. Superior Ct. 598, 135 A.2d 817. It must be remembered that courts are not required to attempt to reconcile conflicting medical testimony, or to review as a matter of law the credibility of the medical ...