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KENNETH E. BRITTEN v. COMMONWEALTH PENNSYLVANIA (03/18/81)

decided: March 18, 1981.

KENNETH E. BRITTEN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND PRESTIGE STATIONS, INC., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Kenneth E. Britten v. Prestige Stations, Inc., No. A-76878.

COUNSEL

John J. Petrush, Petrush & Miller, Ltd., for petitioner.

Ronald Ganassi, Will & Keisling, for respondents.

Judges Wilkinson, Jr., Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 57 Pa. Commw. Page 611]

Petitioner (employee) appeals from an order of the Workmen's Compensation Appeal Board (Board) which denied Petitioner's claim for additional total disability benefits. We affirm the Board's order.

On May 19, 1977, in the course of his employment, Petitioner sprained his left ankle. Despite his ankle injury, Petitioner worked from May 21, 1977, until May 26, 1977, on which date he was discharged from employment. On July 8, 1977, Petitioner asserted before an unemployment compensation referee that he was available for work and began receiving unemployment compensation. On January 17, 1978, Petitioner was examined by his physician who determined that Petitioner had arthritis in his left foot. Based upon

[ 57 Pa. Commw. Page 612]

    the discovery of arthritis, Petitioner filed a workmen's compensation claim on February 21, 1978. Between April 17, 1978, and February 21, 1979, a referee held several hearings on Petitioner's claim. On March 9, 1979, the referee found that Petitioner's work-related ankle injury of May 19, 1977, prevented Petitioner's working from May 29, 1977, until July 8, 1977, and Petitioner was awarded five and 5/7 weeks of temporary total disability compensation.

In this appeal, Petitioner contends that the referee capriciously disregarded competent evidence in failing to find that Petitioner has been totally disabled since January 17, 1978, by arthritis in his left foot, causally connected with his May 19, 1977, work-related ankle injury. "A capricious disregard of competent evidence is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching the result." Transue v. Falk's Food Basket of Philadelphia, 27 Pa. Commonwealth Ct. 156, 158, 365 A.2d 894, 895 (1976) (citation omitted). "This scope of review involves more than mere disbelief of a witness or other competent evidence: it involves 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) (citations omitted); Schick v. Newspaper Guild of Greater Philadelphia, 25 Pa. Commonwealth Ct. 108, 358 A.2d 127 (1976).

Petitioner and Respondent produced extensive expert medical testimony. Both Petitioner's doctor (a physician) and Respondent's doctor (a physician specializing in internal medicine and rheumatology) testified that an x-ray of Petitioner's left ankle (sprained in the course of employment) was within

[ 57 Pa. Commw. Page 613]

    normal limits. In addition, Respondent's doctor concluded as a result of his December 15, 1977, examination of Petitioner and an x-ray of Petitioner's ankle, that Petitioner "had no objective physical findings from that ankle sprain, but he did have subjective complaints related to it that persisted." Petitioner's doctor testified that when he examined Petitioner on January 17, 1978, ...


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