Appeal from the Order of the Workmen's Compensation Appeal Board in case of Patricia C. Senecal v. Walsh Associates, Inc., No. A-76473.
Marie Elisa Marzani, Epstein, O'Neill & Utan, for appellant.
John R. Lenahan, Jr., Lenahan & Dempsey, for respondents.
Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 57 Pa. Commw. Page 181]
Patricia C. Senecal (Claimant) appeals to this Court from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's dismissal of Claimant's petition for workmen's compensation benefits.*fn1 We affirm.
[ 57 Pa. Commw. Page 182]
Claimant alleges that she was injured in the course of her employment as a key-punch operator trainee with Walsh Associates, Inc. (Employer) when, on August 8, 1977, a wheel from the chair she was using fell off forcing Claimant to grab for her desk in order to maintain her balance. This incident allegedly resulted in an injury to Claimant's back. Claimant continued to work and did not seek medical attention despite her alleged injury for approximately fifteen weeks. While at home on November 26, 1977, however, Claimant's right leg collapsed under her. She was admitted to Mercy Hospital shortly thereafter and was diagnosed as having a herniated intervertebral disc. Claimant's condition ultimately required surgery and on February 13, 1978 a laminectomy of the lumbar spine was performed.
Based on evidence adduced at two hearings and the testimony of Claimant's treating physician (Dr. Todaro) by way of deposition, the referee dismissed Claimant's petition finding that she had failed to sustain her burden of proving a compensable work-related injury. The referee specifically found Dr. Todaro's testimony as to causation to be incredible because "it was based on a history which your Referee does not believe." The referee also found that Claimant was involved in an automobile accident "in the latter part of 1977." On Claimant's appeal to the Board the decision of the referee was affirmed.
Claimant argues in her appeal before this Court that 1) there was a capricious disregard of the evidence by the referee, 2) the referee failed to make a necessary finding of fact, to wit, whether or not the Claimant was injured in the alleged automobile accident, and 3) the Employer has the burden of proving that an injury occurred as a result of the automobile accident rather than at work.
[ 57 Pa. Commw. Page 183]
The burden of proof in a claim for compensation under The Pennsylvania Workmen's Compensation Act*fn2 lies with the Claimant. She must establish the right to compensation and all of the elements requisite to an award. Halaski v. Hilton Hotel, 487 Pa. 313, 409 A.2d 367 (1979). Our scope of review where the decision below was adverse to the party with the burden of proof is limited to a determination of whether the findings of fact are consistent with each other and with the conclusions of law and can be sustained without capriciously disregarding competent evidence. American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 377 A.2d 1007 (1977).
Claimant argues that in reaching his decision the referee capriciously disregarded her testimony as well as that of Dr. Todaro. A capricious disregard of competent evidence can be found only where the referee willfully and deliberately disregards competent testimony which one of ordinary intelligence could not possibly avoid in reaching a result. Transue v. Falk's Food Basket of Philadelphia, 27 Pa. Commonwealth Ct. 156, 365 A.2d 894 (1976). It is clear from the referee's detailed summarization of the testimony of Claimant and her physician that no capricious disregard of evidence occurred in the instant case. Rather, the ...