Appeal from the Order of the Workmen's Compensation Appeal Board in case of Joseph F. Jablonski v. Westinghouse Electric Corporation and H & H Foundry, No. A-66765.
Richard C. Witt, with him Jones, Gregg, Creehan & Gerace, for appellant.
William C. Stillwagon, with him James N. Diefenderfer, for appellees.
Judges Wilkinson, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 17 Pa. Commw. Page 153]
Before the Court is an appeal by Westinghouse Electric Corporation (Appellant) from an order of the Workmen's Compensation Appeal Board. On December 13, 1973, the Board sustained a referee's decision denying Appellant's petition to terminate a compensation agreement awarding Joseph F. Jablonski (Appellee) weekly total disability benefits of $60.00, within the limits of the Pennsylvania Workmen's Compensation Act,*fn1 for a back injury sustained in 1969. We affirm.
[ 17 Pa. Commw. Page 154]
On a petition to modify or terminate a compensation agreement filed by an employer, the burden is upon the employer to prove by competent evidence that the claimant's disability is no longer total. Van Horn v. Workmen's Compensation Appeal Board, 12 Pa. Commonwealth Ct. 473, 316 A.2d 686 (1974); Aluminum Company of America v. Theis, 11 Pa. Commonwealth Ct. 587, 314 A.2d 893 (1974). "Where, as here, the decision of the Board is against the party having the burden of proof, the question on appellate review is whether the findings of fact*fn2 are consistent with each other and with the Board's conclusion of law and its order and can be sustained without a capricious disregard of competent evidence." Wilkes-Barre Iron & Wire Works, Inc. v. Workmen's Compensation Appeal Board, 9 Pa. Commonwealth Ct. 612, 614, 309 A.2d 172, 173 (1973) (original footnote omitted). To constitute a capricious disregard there must be a wilful and deliberate disregard of relevant and competent evidence which a person of ordinary intelligence could not have possibly avoided in reaching the result. Drevitch v. Beverly Farms, Inc., 7 Pa. Commonwealth Ct. 1, 297 A.2d 541 (1972); Brown v. Atlantic and Gulf Stevedores, Inc., 2 Pa. Commonwealth Ct. 481, 279 A.2d 372 (1971).
Appellee was first employed by Appellant in March of 1969. On September 15, 1969, while in the regular course of his employment as a sheet metal worker, he stumbled and twisted his back while carrying a four by ten feet sheet of one-eighth inch black iron to a metal shearer. The occurrence of this accident*fn3 was corroborated
[ 17 Pa. Commw. Page 155]
by Appellee's co-workers who testified that he spontaneously shouted: "Oh, my back." By deposition conducted before the referee, Appellant called Dr. James Ballantyne, an orthopedic surgeon who had performed two decompression laminectomies on Appellee in an effort to relieve extradural pressure at the L4 and L5 levels of his backbone. Based upon his surgical findings and the history of the accident and prior work record given him by Appellee, Dr. Ballantyne was of the opinion that Appellee's disability was causally related to the September 15, 1969 injury. Appellant then offered the testimony of Dr. Rex H. Newton who had provided rehabilitative treatment following the surgery. Dr. Newton concurred in the operative diagnosis of Dr. Ballantyne, but he was of the opinion that this condition was causally related to an injury Appellee sustained when he was employed by H & H Foundry in 1966. He testified further that Appellee's disability was limited to ten percent. It is obvious that the referee was then confronted with conflicting medical evidence calling for the exercise of his best judgment. Although we might have reached a different conclusion, the referee in concluding that the testimony of Dr. Ballantyne was credible was within his competence, and we cannot conclude that his rejection of Dr. Newton's testimony constituted a capricious disregard of competent evidence. Van Horn v. Workmen's Compensation Appeal Board, supra; Stringe v. S & S Maintenance Co., 8 Pa. Commonwealth Ct. 619, 303 A.2d 874 (1973).
Remaining for our consideration is Appellant's contention that the Board's order of December 13, 1973, dismissing its appeal, is so indefinite as to deprive it of due process of law. This order directed Appellant to resume payments to Appellee pursuant to the compensation agreement "until such time as it shall ...