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VINCENT ARENA v. PACKAGING SYSTEMS CORP. AND WORKMEN'S COMPENSATION APPEAL BOARD (03/20/86)

decided: March 20, 1986.

VINCENT ARENA, APPELLEE,
v.
PACKAGING SYSTEMS CORP. AND WORKMEN'S COMPENSATION APPEAL BOARD, APPELLANTS



Appeal from the Order of the Commonwealth Court dated October 24, 1984, entered at No. 2793 C.D. 1983, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., concurs in the result. Larsen, J., dissents on the basis of the Commonwealth Court opinion authored by Judge Craig, Arena v. Workmen's Compensation Appeal Board (Packaging Systems Corp.), Author: Nix

[ 510 Pa. Page 36]

OPINION

In this matter we granted allocatur to address whether the Commonwealth Court employed the correct standard of review in reversing the decision of the Workmen's Compensation Appeal Board ("Board") which denied benefits to Vincent Arena ("appellee"). This matter arose on December 28, 1976 when appellee filed a claim for disability compensation pursuant to the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq., alleging that exposure to chemicals at his workplace, Packaging Systems Corporation ("PSC"), caused him "recurrent severe nose, sinus and throat infections and other problems with the upper and lower respiratory track" rendering him disabled as of October 1, 1976.*fn1

[ 510 Pa. Page 37]

Following a hearing, at which the original referee assigned to this case*fn2 received evidence from appellee and various medical experts, a substituted referee ("referee") dismissed appellee's complaint on February 9, 1982, finding that appellee was not totally disabled from exposure to chemicals in his employment. In so concluding, the referee relied upon the opinions of three medical doctors.*fn3 Appellee appealed the referee's decision to the Board which, on September 29, 1983, affirmed on the ground that there was ample evidence to sustain the decision of the referee.

Upon appellee's appeal to the Commonwealth Court, that court reversed the Board holding that "[t]he referee's rejection of the uncontradicted medical evidence and consequent

[ 510 Pa. Page 38]

    determination that Arena did not suffer a work-related disability . . . constituted capricious disregard of competent evidence." Arena v. Workmen's Compensation Appeal Board (Packaging Systems Corp.), 85 Pa. Commw. 553, 559, 483 A.2d 577, 580 (1984) (footnote omitted). The court also ruled that once appellee had established his work-related disability, the employer bore the burden of proving that other work was available. A timely appeal by the PSC and the Board ("appellants") was made to this Court pursuant to 42 Pa.C.S. § 724(a).

I.

Appellants contend that the Commonwealth Court erred by substituting its own findings of fact for that of the referee. Alternatively, appellants contend that even if a work-related disability existed in the instant case, the employer met its burden of proving availability of other work when it offered a position to the claimant in an environment free of those fumes which occasioned the disability. We do not address appellant's alternative argument since we agree that the Commonwealth Court substituted its own judgment of fact for that of the referee.

In a workmen's compensation case, the claimant has the burden of establishing the right to compensation and all of the elements necessary to support an award. Halaski v. Hilton Hotel, 487 Pa. 313, 317, 409 A.2d 367, 369 (1979). On an appeal from a decision of the Workmen's Compensation Appeal Board taken by the party who had the burden of proof, the Board's findings of fact must be sustained unless they capriciously disregard competent evidence or unless they are inconsistent with each other or with either the Board's conclusions of law or its order. Barrett v. Otis Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968). A capricious disregard of evidence will be found when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result. Anderson v. Workmen's Compensation Appeal Board, 80 Pa. Commw. 253,

[ 510 Pa. Page 39471]

A.2d 112 (1984); Mekunis v. Workmen's Compensation Appeal Board, 62 Pa. Commw. 120, 435 A.2d 287 (1981); Novak v. Workmen's Compensation Appeal Board, 59 Pa. Commw. 596, 430 A.2d 703 (1981); Senecal v. Workmen's Compensation Appeal Board, 57 Pa. Commw. 180, 425 A.2d 1200 (1981); Workmen's Compensation Appeal Board v. Pizzo, 21 Pa. Commw. 370, 346 A.2d 588 (1975); Foster Wheeler Corp. v. Workmen's Compensation Appeal Board, 13 Pa. Commw. 45, 317 A.2d 922 (1974).

As we have stated before, it is not within the province of the reviewing court to make findings of fact, Williams v. Spaulding Bakeries, Inc., 464 Pa. 29, 346 A.2d 3 (1975); Dunn v. Merck & Co., Inc., 463 Pa. 441, 345 A.2d 601 (1975), but rather, the reviewing court must take as true the evidence and all reasonable inferences therefrom supporting the decisions of the Board, Harman Coal Co. v. Dunmyre, 474 Pa. 610, 379 A.2d 533 (1977); Universal Cyclops Steel Corporation v. Workmen's Compensation Appeal Board, 9 Pa. Commw. 176, 305 A.2d 757 (1973). Stated otherwise, the findings of fact of the Board are conclusive on appeal and the board will be reversed only if any finding of fact necessary to support its adjudication is not supported by substantial evidence. See Workmen's Compensation Appeal ...


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