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BARRETT v. OTIS ELEVATOR COMPANY (10/03/68)

decided: October 3, 1968.

BARRETT, APPELLANT,
v.
OTIS ELEVATOR COMPANY



Appeal from order of Superior Court, Oct. T., 1966, No. 254, affirming order of Court of Common Pleas of Lackawanna County, Sept. T., 1965, No. 1608, in case of Michael P. Barrett v. Otis Elevator Company and Employers' Liability Assurance Corporation.

COUNSEL

Joseph E. Gallagher, with him Thomas J. Foley, Sr., Ralph P. Needle, Leo G. Knoll, and O'Malley, Morgan, Bour & Gallagher, for appellant.

James M. Howley, with him James W. Scanlon, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts concurs in the result. Dissenting Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Cohen.

Author: Eagen

[ 431 Pa. Page 448]

This case has a long and rather confused history which will be simplified in order to quickly frame the question raised on this appeal.

Michael P. Barrett (hereinafter the Claimant) petitioned the Workmen's Compensation Board (hereinafter Board) for an award in accordance with the provisions of The Pennsylvania Workmen's Compensation Act, the Act of June 2, 1915, P. L. 736, 77 P.S. ยง 1 et seq., alleging that he had incurred a disability as the result of an accident which occurred in the course of his employment for Otis Elevator Company (hereinafter the Employer). After considering the conflicting testimony of four medical doctors, the Board found that the claimant was totally disabled from December 8, 1961, to March 10, 1962, and 40 per cent disabled for an indefinite period thereafter. The claimant excepted to the Board's finding that his disability was only partial after March 10, 1962, and he appealed to the Court of Common Pleas of Lackawanna County. On remand from that court, the Board clarified and reaffirmed its finding and the claimant again appealed. The Court of Common Pleas of Lackawanna County dismissed the appeal on the ground that the challenged finding does not capriciously disregard competent evidence. The Superior Court affirmed per curiam, without opinion. This Court then granted allocatur. On September 26, 1967, we filed an opinion affirming the lower courts. Thereafter, we granted a petition for reargument to reconsider the question of whether or

[ 431 Pa. Page 449]

    not the Board's finding of partial disability should be sustained in the light of the decisions in Kirk v. L. Bauer, Jr., Inc., 209 Pa. Superior Ct. 357, 228 A.2d 228 (1967), and Petrone v. Moffat Coal Co., 427 Pa. 5, 233 A.2d 891 (1967).

The claimant's first objection to the Board's finding that he is only partially disabled is that the finding is based on the testimony of a medical doctor that fails to place the claimant's physical impairment in the context necessary to relate the accidental injury to a loss of earning power*fn1 which, of course, is the relevant question under the Pennsylvania Workmen's Compensation Act, supra.*fn2 The claimant points to Kirk v. L. Bauer, Jr., supra, in which the Superior Court held that a finding of partial disability was not supported by competent evidence because the testimony of a medical doctor reflected the same weaknesses that claimant alleges exist in this case. Claimant concludes that here, as in Kirk, the Board's finding also should be rejected.

Although the medical testimony in this case, as in Kirk, may not have been competent, this defect could not be a ground for reversal given the limited nature of our appellate review. Courts do have the power to determine whether or not the Board's findings of fact are supported by competent evidence. Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 205-06, 133 A. 256,

[ 431 Pa. Page 450257]

-58 (1926), but it is established that, on appeal from a decision of the Board by the party having the burden of proof, the Board's findings of fact must be sustained unless they capriciously disregard competent evidence or unless they are inconsistent with each other or with either the Board's conclusions of law or its order.*fn3 In Kirk, the employer, who petitioned the Board for the modification of an agreement providing total disability benefits for the injured employee, had the burden of proving that the employee was not totally disabled. The Board found that the employee was only partially disabled, granted the employer's petition, and the employee appealed. Thus, the question on the appeal by the employee, who did not have the burden of proof, was whether or not the finding that he was partially disabled was supported by competent evidence. On the other hand, in this case the claimant concedes, with reference to this objection to the finding, that he has the burden of proof and he recognizes that, consequently, the standard of review is whether or not the Board capriciously disregarded competent evidence.*fn4

The flaw in claimant's argument is that it confuses two different standards of appellate review. Claimant argues that the Board's finding that he is only partially disabled capriciously disregards competent evidence

[ 431 Pa. Page 451]

    because it is unsupported by competent evidence.*fn5 It should be obvious that this argument is a non sequitur. A finding that is completely unsupported by competent evidence does not capriciously disregard competent evidence if there is not competent evidence to support a contrary finding. Actually the claimant's argument echoes a confusion which both the Superior Court and this Court have attempted frequently to dispel. Thus, the Superior Court has said: "Where the compensation authorities have found against the party having the burden of proof, in this case the claimant, the question on appeal is not whether the findings of fact are supported by sufficient competent evidence but rather whether there has been a capricious disregard of the competent evidence . . . ." Bogan v. Smoothway Construction Co., 183 Pa. Superior Ct. 170, 176, 130 A.2d 207, 210 (1957). Quite recently, in the same procedural context, this Court has said: ...


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