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WILLIAM KUCHINSKI v. COMMONWEALTH PENNSYLVANIA (10/20/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 20, 1978.

WILLIAM KUCHINSKI, DECEASED, BY MARION KUCHINSKI, WIDOW AND SURVIVING SPOUSE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND WILLIAMS BAKERY, RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of William J. Kuchinski, Deceased, by Marion Kuchinski, widow and surviving spouse v. Williams Bakery, No. A-72619.

COUNSEL

David J. Fallk, with him Robert W. Munley, and Munley & Munley, for petitioner.

John R. Lenahan, with him John R. Lenahan, Sr., and Lenahan, Dempsey & Murphy, and James N. Diefenderfer, for respondents.

Judges Blatt, DiSalle and MacPhail, sitting as a panel of three.

Author: Per Curiam

[ 38 Pa. Commw. Page 211]

This case comes before us by way of a petition for review of an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision denying compensation to William J. Kuchinski (Claimant) for his alleged exposure to an occupational disease hazard while employed by the Williams Baking Company (Employer). The referee found that Claimant failed to prove that he was exposed to an occupational disease hazard during his employment within the meaning of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq. Specifically, he concluded that neither Section 301(c), 77 P.S. § 411 nor Section 108(n), as added by Section 1 of the Act of October 17,

[ 38 Pa. Commw. Page 2121972]

, P.L. 930, as amended, 77 P.S. § 27.1(n), supports Claimant's contention that he had suffered a compensable injury.

Since the party bearing the burden of proof did not prevail below, the sole issue presented in this case is whether the referee's findings were made as a result of a capricious disregard of competent evidence. This scope of review involves more than mere disbelief of a witness or other competent evidence: it involves such deliberate disbelief of the undoubted testimony or evidence from an apparently trustworthy source as would be repugnant to a man of reasonable intelligence. Workmen's Compensation Appeal Board v. Sullivan, 22 Pa. Commonwealth Ct. 386, 348 A.2d 925 (1975).

It is clear from the record that the relevant medical evidence was conflicting. The referee, in adjudging the credibility of the witnesses,*fn1 simply chose to believe that physician who testified in opposition to the Claimant's claim. There is no doubt that the evidence which he relied upon was competent. We see no reason to disturb the referee's findings, as affirmed by the Board.*fn2

[ 38 Pa. Commw. Page 213]

Order

And Now, this 20th day of October, 1978, the order of the Workmen's Compensation Appeal Board dated July 7, 1977, denying benefits to Marion Kuchinski, is hereby affirmed.

Disposition

Affirmed.


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