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ERIC HILL v. COMMONWEALTH PENNSYLVANIA (06/09/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 9, 1980.

ERIC HILL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND MARTINSBURG ELECTRICAL ASSOCIATES, INC., RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Eric Hill v. Martinsburg Electrical Associates, Inc. and Commonwealth of Pennsylvania, No. A-73590.

COUNSEL

Timothy P. Creany, with him Blair V. Pawlowski, for petitioner.

Sandra S. Christianson, with her Laurence W. Dague, Assistant Attorney General, Joan A. Goldsmith and James DiFrancesco, for respondents.

Judges Rogers, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 52 Pa. Commw. Page 97]

Eric Hill has appealed from an order of the Workmen's Compensation Appeal Board affirming a referee's decision refusing him an award of workmen's compensation benefits for disability due to pneumoconiosis.

Hill worked as a coal miner from 1927 until 1950. From 1950 until 1966 he was employed by a tire service company. In 1966, Hill began working for Martinsburg Electrical Associates, Inc. as an electrician, working primarily at coal mines running conduit and pulling wires. He left his employment with Martinsburg in January 1976 because, as he said, he "couldn't get enough wind to keep going."

In September 1976, Hill filed a claim petition naming Martinsburg as defendant for partial or total disability due to pneumoconiosis under Section 108(q) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, added by the Act of October 17, 1972, P.L. 930, as amended, 77 P.S. ยง 27.1(q). A referee's hearing was held at which Hill testified and medical reports from the Mercy Hospital of Johnstown and a Dr. Mathur were introduced. The referee found that Hill failed to prove that

[ 52 Pa. Commw. Page 98]

    he was partially or totally disabled from pneumoconiosis as a result of exposure to coal and silica hazard while employed by Martinsburg. The Board, without taking additional evidence, affirmed the referee's decision.*fn1

Hill contends that his own testimony and Dr. Mathur's report provide uncontradicted evidence that he is disabled by pneumoconiosis and that the referee and the Board capriciously disregarded this evidence in reaching their decisions. We disagree.

A capricious disregard of evidence occurs when the referee deliberately disbelieves "'undoubted testimony or evidence from an apparently trustworthy source as would be repugnant to a man of reasonable intelligence.'" Lewis v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 70, 72, 401 A.2d 863, 864-65 (1979), quoting Kuchinski v. Workmen's Compensation Appeal Board, 38 Pa. Commonwealth Ct. 210, 212, 392 A.2d 348, 349 (1978). The referee's finding of fact numbered 9, reproduced in footnote (2),*fn2 reveals that the referee considered Dr. Mathur's

[ 52 Pa. Commw. Page 99]

    report and chose not to accept Dr. Mathur's conclusion, as it was within his competence to do. Fesh v. American Steel & Wire Division, United States Steel Corp., 4 Pa. Commonwealth Ct. 84, 87, 286 A.2d 10, 12 (1972). A decision by the referee to accept or reject evidence of this nature is not a capricious disregard of evidence. Lewis v. Workmen's Compensation Appeal Board, supra.

Moreover, the referee's finding that Hill failed to prove a disability resulting from his employment with Martinsburg is supported by substantial evidence.

Tests done on Hill showed normal results, with the exception of Hill's x-rays by the Mercy Hospital which revealed some pneumoconiosis. Dr. Mathur expressed the opinion that Hill was disabled only from working as a coal miner. There was thus no evidence in the record that Hill was disabled from working as an electrician or that he suffered any disability as the result of his employment with Martinsburg.

Order

And Now, this 9th day of June, 1980, the order of the Workmen's Compensation Appeal Board denying workmen's compensation benefits to Eric Hill is affirmed.

Disposition

Affirmed.


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