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WALLACE L. BENDER (DECEASED) v. COMMONWEALTH PENNSYLVANIA (11/13/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 13, 1981.

WALLACE L. BENDER (DECEASED), BY MARY ANN, WIDOW, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND THE BELL TELEPHONE COMPANY OF PENNSYLVANIA, RESPONDENTS. THE BELL TELEPHONE COMPANY OF PENNSYLVANIA, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND WALLACE L. BENDER (DECEASED), BY MARY ANN, WIDOW, RESPONDENTS

Appeals from the Order of the Workmen's Compensation Appeal Board in case of Wallace L. Bender, deceased; Mary Ann Bender, widow v. Bell Telephone Company of Pennsylvania, No. A-76094.

COUNSEL

Patrick H. Mahady, Mahady & Mahady, for petitioner, Wallace L. Bender (deceased) by Mary Ann, widow.

Stephen K. Ernst, for respondent, The Bell Telephone Company of Pennsylvania.

President Judge Crumlish, Jr. and Judges Rogers and Williams, sitting as a panel of three. Opinion by President Judge Crumlish. Judges Rogers and Williams, Jr., concur in the result only.

Author: Crumlish

[ 62 Pa. Commw. Page 376]

Mary Ann Bender (Bender) appeals a Workmen's Compensation Appeal Board order affirming a referee's denial of fatal claim benefits. The Bell Telephone Company of Pennsylvania cross-appeals to preserve its objection to a claimed error of law. We affirm.

On April 2, 1974, Wallace L. Bender (decedent), a Bell employee, allegedly incurred a work-related injury and subsequently entered into a Notice of Compensation Payable with Bell for total disability which began in August, 1974.*fn1 On March 17, 1977, Mr. Bender died and his widow filed a fatal claim petition alleging that his death was proximately caused by the April 2, 1974 accident. The referee held that (1) Bell had rebutted the presumption, arising from the compensation agreement, that there had been a work-related injury, and (2) even if there were a work-related injury, Bender had failed to produce credible medical evidence relating the death to the injury. The Board, although concluding that the compensation agreement admitted the existence of a work-related injury, concurred that Bender had failed to produce unequivocal medical testimony establishing a causal link between the decedent's death and the injury, and accordingly affirmed the referee's decision.

[ 62 Pa. Commw. Page 377]

The first issue for our review is whether the existence of a work-related injury was proved by the compensation agreement.*fn2 In Fehr v. Y.M.C.A., 201 Pa. Superior Ct. 107, 112, 192 A.2d 143, 146 (1963), our Superior Court held that a compensation agreement

     amounts to a formal admission by the employer . . . of the claimant's employment; the happening of the accident ; and the nature of the injuries resulting from the accident on the date stated while in that employment; and the total disability as a result of those injuries. (Emphasis added.)

The agreement, however, is only prima facie evidence that the claimant suffered a compensable accident. McGahen v. General Electric Co., 406 Pa. 57, 60 n. 1, 177 A.2d 85, 86 n. 1 (1962). Therefore, this agreement, being an "evidential admission," is not conclusive and, accordingly, is subject to contradiction or explanation. McCormick, Law of Evidence ยง 239 (1954).

The referee was convinced, based on the testimony of four witnesses, that Bell effectively rebutted the presumption of a work-related injury. Since the referee had committed no error of law and his finding was based on competent evidence, the Board, without taking additional evidence, was prevented from making its own contrary determination regarding the occurrence of a work-related injury. Kunigonis v. H.P. Foley, Inc., 28 Pa. Commonwealth Ct. 73, 79,

[ 62 Pa. Commw. Page 378367]

A.2d 763, 766 (1977).*fn3 We further conclude that the referee, in making his finding, did not capriciously disregard competent evidence introduced by Bender. Automotive Center, Inc. v. Workmen's Compensation Appeal Board, 55 Pa. Commonwealth Ct. 247, 248, 422 A.2d 1233, 1234 (1980).*fn4

A discussion of the second issue before us demonstrates that the Board's finding of a work-related injury was harmless error. Where there is no obvious causal connection between the employee's death and an alleged accident, unequivocal medical testimony is necessary to establish the connection. McPhillips v. School District of Philadelphia, 40 Pa. Commonwealth Ct. 204, 208, 396 A.2d 922, 924 (1979). Since the determination of a witness's credibility is within the province of the referee, Aluminum Co. of America v. Workmen's Compensation Appeal Board, 33 Pa. Commonwealth Ct. 33, 38, 380 A.2d 941, 943 (1977), our review

[ 62 Pa. Commw. Page 379]

    is limited to whether the order can be sustained without capricious disregard of competent evidence. McPhillips, supra at 207, 396 A.2d at 924. The mere fact that the referee accepts the testimony of one competent medical witness rather than the conflicting testimony of an equally competent medical witness does not satisfy the standard of capricious disregard. Nye v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 98, 100, 401 A.2d 875, 876 (1979).

The referee, within his prerogative, concluded that the testimony of Bell's medical witness was more credible than that of Bender's. The referee found that, even if the decedent had sustained an injury on April 2, 1974, his death was not the result of that injury. This finding, based on competent evidence and not made in capricious disregard of evidence presented by Bender, will not be disturbed.

Affirmed.

Date: November 13, 1981

Judges Rogers and Williams, Jr., concur in the result only.

Order

The Workmen's Compensation Appeal Board order, dated August 2, 1979, Docket No. A-76094, is affirmed.

Disposition

Affirmed.


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