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HUGH H. EBY CO. v. COMMONWEALTH PENNSYLVANIA (11/01/79)

decided: November 1, 1979.

HUGH H. EBY CO., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND DINORA VADI, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Dinora Vadi v. Hugh H. Eby Co., No. A-72529.

COUNSEL

Neil N. Sherkovsky, with him Brian R. Steiner, Special Assistant Attorney General, for petitioner.

Joseph Lurie, for respondents.

Judges Crumlish, Jr., Wilkinson, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 47 Pa. Commw. Page 136]

This is an appeal by employer and its insurance carrier from an order of the Workmen's Compensation Appeal Board affirming a referee's dismissal of employer's petition for termination. We affirm.

Claimant*fn1 was injured on September 27, 1973 while operating a power press machine and sustained a

[ 47 Pa. Commw. Page 137]

    crush injury of the left thumb. Compensation for total disability was paid to claimant pursuant to a Notice of Compensation Payable. The instant petition for termination was filed on November 13, 1974.

The sole issue before the Court on the termination petition is whether the referee capriciously disregarded competent evidence in finding that claimant was totally disabled. Claimant's medical witness testified without equivocation that claimant remained totally disabled as a result of the September 1973 accident. The following excerpt from the doctor's testimony is illustrative: "In my opinion [claimant] is unable to work in any kind of work, is totally disabled from the combination of the various injuries that she suffered."*fn2

Petitioner contends that the referee's finding of total disability could only be made by the capricious disregard of competent testimony supplied by two of employer's witnesses, paid investigators, who observed claimant "working" in a neighborhood grocery. Although employer's witnesses provided competent testimony, mere disbelief of a witness or other competent evidence does not satisfy the standard of capricious disregard; it is, instead, "such deliberate disbelief of the undoubted testimony or evidence from an apparently trustworthy source as would be repugnant to a man of reasonable intelligence." Kuchinski v. Workmen's Compensation Appeal Board, 38 Pa. Commonwealth Ct. 210, 212, 392 A.2d 348, 349 (1978).

The referee's seventh finding of fact is the complete answer to petitioner's argument on this issue and we ...


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