decided: February 25, 1980.
KATHERINE B. GEORGE, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND SANDSON'S ON MAIN STREET, RESPONDENTS
Appeal from the Order of the Workmen's Compensation Appeal Board in case of Katherine B. George v. Sandson's On Main Street, No. A-75712.
John W. DeWalt, with him Christopher Lepore of Cooper, Lepore & Dreeland, for petitioner.
Joseph F. Grochamel, with him Roy F. Walters, Jr., of Fried, Kane, Walters & Zuschlag, for respondents.
Judges Crumlish, Jr., Mencer and MacPhail, sitting as a panel of three. Opinion by Judge Crumlish, Jr. This decision was reached prior to the death of President Judge Bowman. Judge DiSalle did not participate in the decision in this case.
[ 49 Pa. Commw. Page 436]
The Workmen's Compensation Appeal Board, affirming the referee's decision, denied benefits to Katherine B. George on the grounds that supporting medical testimony was equivocal and failed to sustain the burden of proving a work-related injury.*fn1 We likewise affirm.
George, employed as a meat wrapper, was involved in an accident at work on February 4, 1977, when a stack of meat boxes toppled and struck her back. She later felt pain in her left leg, was examined by several physicians, underwent myelogram tests, and finally was admitted to a hospital on June 1, 1977, for crushed
[ 49 Pa. Commw. Page 437]
disc surgery. Petitioner was totally disabled from June 1st to October 16th of 1977, after which period she returned to work without disability.
It is well settled that where no obvious causal connection exists between a claimant's injury and alleged cause unequivocal medical evidence must establish a nexus between injury and the alleged cause. Medical testimony which is less than positive or based on mere possibilities does not constitute legally competent evidence. Ulmer v. Workmen's Compensation Appeal Board, 47 Pa. Commonwealth Ct. 607, 408 A.2d 902 (1979); Westmoreland Casualty Co. v. Workmen's Compensation Appeal Board, 36 Pa. Commonwealth Ct. 307, 309, 387 A.2d 683, 684 (1978).
George's medical testimony consisted of a causation supporting narrative report by Dr. Samuel Sherman, who examined petitioner and issued a report dated July 8, 1978, nine months following her return to work, absent disability, and 17 months after the accident. The employer's medical evidence consisted of a hospital discharge summary by her treating physician, Dr. Robert A. Holst, which related her back pains to some "unknown etiology."*fn2 With this evidence, the referee found petitioner had failed to prove that her disability was causally related to the February 4, 1977 injury.
Clearly, the burden of proof lies with the petitioner to show that she has suffered a compensable injury. See Hudack v. Workmen's Compensation Appeal Board, 32 Pa. Commonwealth Ct. 508, 510 n. 1, 379 A.2d 1074, 1075 n. 1 (1977). Where, as here, the party with the burden of proof below fails, the question for us to decide on appeal is whether the referee capriciously
[ 49 Pa. Commw. Page 438]
disregarded competent evidence.*fn3 Lewis v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 70, 72, 401 A.2d 863, 864 (1979). The record fails to disclose evidence by which we could conclude that the referee capriciously disregarded such competent evidence of causation.
And Now, this 25th day of February, 1980, the order of the Workmen's Compensation Appeal Board dated March 1, 1979, affirming the referee's order of July 24, 1978, denying benefits to Katherine B. George, is hereby affirmed.
This decision was reached prior to the death of President Judge Bowman. Judge DiSalle did not participate in the decision in this case.