decided: May 25, 1979.
MELVIN LEWIS, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND PENNSYLVANIA LIQUOR CONTROL BOARD, RESPONDENTS
Appeal from the Order of the Workmen's Compensation Appeal Board in case of Melvin Lewis v. Pennsylvania Liquor Control Board, No. A-71317.
Sylvan D. Einhorn, for appellant.
John E. O'Connor, for appellees.
Judges Crumlish, Jr., Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 43 Pa. Commw. Page 71]
The Pennsylvania Workmen's Compensation Appeal Board (Board) affirmed a referee's dismissal of Melvin Lewis's claim for compensation under The Pennsylvania Workmen's Compensation Act*fn1 (Act) for a back injury he allegedly sustained in an "accident" which occurred during the course of his employment with the Pennsylvania Liquor Control Board (Employer). Melvin Lewis appeals. We affirm.
[ 43 Pa. Commw. Page 72]
The referee found that Claimant-Lewis failed to meet his burden of proof:*fn2 the medical evidence offered by Lewis did not establish that he suffered a compensable injury as a result of an "accident" in the course of his employment as provided in Section 301(c) of the Act.*fn3
The burden of proof and the Court's scope of review is undisputed. If the burdened party fails below, the question on appeal is whether the referee capriciously disregarded competent evidence. That the referee chooses to believe a witness is not capricious conduct; only when the referee deliberately disbelieves "undoubted testimony or evidence from an apparently trustworthy source as would be repugnant to a man of reasonable intelligence" may we find that he has acted in a capricious manner. Kuchinski v. Workmen's Compensation Appeal Board, 38 Pa. Commonwealth Ct. 210, 212, 392 A.2d 348, 349 (1978).
Considering the following facts of record, we are satisfied that the referee did not capriciously disregard competent evidence in making his findings and conclusions: first, there is nothing in the record to
[ 43 Pa. Commw. Page 73]
support the allegation that the injury Lewis sustained on September 17, 1970, was the result of an "accident" compensable under the Act;*fn4 second, Lewis failed to submit medical testimony to conclusively establish that there is a causal connection between his alleged injury of September 17, 1970, and his present disability. Contrariwise, Employer's medical expert testified that in his opinion the injury of September 17, 1970, was not causally related to Lewis's existing disability.
And Now, this 25th day of May, 1979, the order of the Workmen's Compensation Appeal Board dated March 17, 1977, denying benefits to Melvin Lewis, is hereby affirmed.