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DOUGLAS MILLER v. WORKMEN'S COMPENSATION APPEAL BOARD (ATLAS POWDER COMPANY) (07/19/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 19, 1982.

DOUGLAS MILLER, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ATLAS POWDER COMPANY), RESPONDENT

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Douglas Miller v. Atlas Powder Company, No. A-79579.

COUNSEL

Maureen Krueger, with her Lester Krasno, for petitioner.

Charles M. Miller, Rubright, Domalakes, Troy & Miller, for respondent.

President Judge Crumlish and Judges Rogers and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Mencer did not participate in the decision in this case.

Author: Crumlish

[ 67 Pa. Commw. Page 494]

Miller appeals a Workmen's Compensation Appeal Board order which affirmed the referee's dismissal of his claim.*fn1 We affirm.

[ 67 Pa. Commw. Page 495]

Miller allegedly suffered a back injury after a slip and fall on ice while loading a truck on November 21, 1975.*fn2 His disability extended from March 22, 1976 to June 7, 1976, and from July 8, 1976 to October 19, 1976.*fn3 The referee denied benefits concluding (1) that Miller failed to give his employer proper notice of his injury within 120 days of November 21, 1975 as required by Section 311 of The Pennsylvania Workmen's Compensation Act*fn4 (Act), and (2) that he did not establish an injury that was job-related.

Where the party with the burden of proof has not prevailed below, this Court's scope of review is limited to determining whether the factual findings are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. Haney v. Workmen's Compensation Appeal Board, 65 Pa. Commonwealth Ct. 461, 442 A.2d 1223 (1982).

Miller contends that his immediate supervisor, David Truskey, witnessed his fall and, under Section 313 of the Act,*fn5 knowledge on the part of a supervisor is imputed to the employer. He asserts that the referee

[ 67 Pa. Commw. Page 496]

    capriciously disregarded competent evidence by finding that Truskey was merely a fellow employee without authority to receive notice of employee injuries.*fn6

Capricious disregard, by definition, involves a willful, deliberate disbelief of an apparently trustworthy witness, whose testimony one could not possibly challenge. Jones and Laughlin Steel Corp. v. Workmen's Compensation Appeal Board, 41 Pa. Commonwealth Ct. 223, 399 A.2d 444 (1979). A review of the record clearly evinces support for the referee's finding.*fn7

Since our holding affirms the referee's conclusion that notice was improperly served upon the employer, it is unnecessary to address the issue of causation.

Affirmed.

Order

The Order of the Workmen's Compensation Appeal Board, No. A-79579, dated April 16, 1981, is hereby affirmed.

Judge Mencer did not participate in the decision in this case.

Disposition

Affirmed.


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