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JOHN CURRY v. WORKMEN'S COMPENSATION APPEAL BOARD (ADAMS) (05/07/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 7, 1986.

JOHN CURRY, INC. AND CENTENNIAL INSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ADAMS), RESPONDENT

Appeal from the Order of the Workmen's Compensation Appeal Board in case of William Adams v. John Curry, Inc., No. A-86215.

COUNSEL

Susan McLaughlin, with her, Roger B. Wood and David L. Pennington, Harvey, Pennington, Herting & Renneisen, Ltd., for petitioners.

Theodore P. Winicov, with him, James J. DeMarco, DeMarco & Carrafiello, for respondent, William Adams.

Judges Craig, Doyle and Colins, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 97 Pa. Commw. Page 128]

John Curry, Inc. appeals from a Workmen's Compensation Appeal Board order affirming a referee's decision awarding total disability compensation to William Adams. The board's order is affirmed.

According to the referee's findings of fact, the claimant filed a petition on April 7, 1978, for an injury sustained on February 10, 1978. At the time of the initial accident, the claimant was employed as a truck driver. He continued to work until March 10, 1978, when he fell on an ice embankment and reinjured himself while making a delivery for the employer. Although the claimant returned to work on September 1, 1978, working three days per week, he had to cease work on November 20, 1978 because the continued work aggravated the March injury.

The employer raises three issues;*fn1 however, in framing the factual issues, the employer has pursued an inapplicable

[ 97 Pa. Commw. Page 129]

    standard of review. Where the board does not consider additional evidence and the party with the burden of proof has prevailed before the referee, the standard of review as to facts is whether substantial evidence exists to support the essential findings of fact. Montgomery Mills Co. v. Workmen's Compensation Appeal Board, 26 Pa. Commonwealth Ct. 471, 364 A.2d 508 (1976). Hence, the issues are: (1) whether the referee's findings of fact are supported by substantial evidence, and (2) whether the board committed an error of law in failing to review the employer's films.

The employer offered testimony before the referee that, although the claimant's injuries justified restrictions on lifting, there were jobs available to the claimant. In addition, the employer submitted films "depicting a few of claimant's activities." However, the referee found credible the claimant's testimony and the testimony of the claimant's physician indicating that the claimant was totally and permanently disabled by his injuries suffered at work. The referee, as the ultimate factfinder,*fn2 may accept or reject the testimony of any witness in whole or in part, and further, the referee's decision to accept the testimony of one competent medical witness over another will not be disturbed on appeal. Borkowski v. Workmen's Compensation Appeal Board (John F. Kennedy Medical Center), 74 Pa. Commonwealth Ct. 310, 459 A.2d 1336 (1983). Consequently,

[ 97 Pa. Commw. Page 130]

    the record contains substantial evidence to support the referee's finding that the claimant is permanently and totally disabled.

Although the referee viewed all of the employer's films in their entirety, the board failed to obtain and view the surveillance films. This court has stated that "[t]he Board cannot fulfill its statutorily mandated duty without having the benefit of the entire record." Del Penn Steel Corp. v. Abrams, 8 Pa. Commonwealth Ct. 226, 229, 302 A.2d 875, 877 (1973). Moreover, this court has voiced its disapproval of the board's refusal to view such films. John B. Kelly Co., Inc. v. Davis, 8 Pa. Commonwealth Ct. 589, 594, 303 A.2d 255, 258 (1973). Consequently, where surveillance films are admitted into evidence without objection, constituting part of the record, the board commits an error of law in not viewing those films in its review of the entire record.

The issue remains whether the board's error in not viewing the films justifies a remand. When the record is incomplete, lacking evidence essential to a determination of the issue, the proper course of action is to remand. Marshall v. Workmen's Compensation Appeal Board (Gulf & Western Industrial Products Company, etc.), 79 Pa. Commonwealth Ct. 128, 468 A.2d 1164 (1983).

However, when the record contains substantial evidence to support the referee's findings, those findings cannot be disturbed on appeal. Here, the films were not essential to the board's determination that substantial evidence supported the referee's findings of total and permanent disability. Because the board's substantial evidence determination precluded it from disturbing the referee's findings, the board's error in not viewing the films in its review of the entire record was harmless.*fn3 Moreover, this court, in a similar case in

[ 97 Pa. Commw. Page 131]

    which the board refused to view films, affirmed the board's decision based on "the fact that the Board had the benefit of a running narration of the films by the [employer's] investigation on the record. From this, some review of the films though limited could be afforded." John B. Kelly Co., Inc., 8 Pa. Commonwealth Ct. at 594, 303 A.2d at 258. In this case, the employer's investigator testified before the referee as to the contents of the films, giving a narration of the films as they were being shown. Consequently, record evidence concerning the content of the moving pictures was before the board.

Accordingly, the board's order is affirmed.

Order

Now, May 7, 1986, the order of the Workmen's Compensation Appeal Board, No. A-86215, dated November 8, 1984, is affirmed.

Disposition

Affirmed.


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