American Refrigerator Equipment Co. v. Commonwealth

377 A.2d 1007, 31 Pa. Commw. 590, 1977 Pa. Commw. LEXIS 1028
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 14, 1977
DocketAppeal, No. 1450 C.D. 1976
StatusPublished
Cited by154 cases

This text of 377 A.2d 1007 (American Refrigerator Equipment Co. v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Refrigerator Equipment Co. v. Commonwealth, 377 A.2d 1007, 31 Pa. Commw. 590, 1977 Pa. Commw. LEXIS 1028 (Pa. Ct. App. 1977).

Opinion

Opinion by

Judge Mencee,

American Refrigerator Equipment Company (employer) has appealed an order of the Workmen’s Compensation Appeal Board (Board). The order affirmed [592]*592two referee’s awards to John Jakel: one for temporary ■total disability as a result of an injury on or about April 16, 1973 and the other for total disability as a result of an injury on or about December 10, 1973.

On April 16,1973, Jakel, a 52-year-old refrigerator installer who had served the employer for about 18 years without any lower back problems, was pushing a heavy refrigerator section when he experienced a sharp pain in his left leg. Several days later he also began to experience pain in his lower back. Because the pain continued throughout the summer, Jakel regularly visited his physician. In September, the pain became so acute that Jakel desperately sought medical relief. He was referred to Dr. Vincent L. Ferrara, a neurological surgeon, who hospitalized him on September 13, 1973. After other treatment had failed, Dr. Ferrara performed a facet rhizotomy in order to relieve Jakel’s intense pain. Jakel was able to return to work on October 29,1973.

On December 10,1973, while trying to grab a large, heavy refrigerator section which was apparently about to slip, Jakel felt a pull in his lower back. The ensuing pain in his left leg and back was severe, and he immediately sought the advice of his physician. Jakel was again referred to Dr. Ferrara, who hospitalized him and, five days before Christmas, removed a portion of his spine. Although Jakel returned home a few days later, he did not return to work.

Jakel filed two petitions claiming benefits under The Pennsylvania Workmen’s Compensation Act, Act of June 2,1915, P.L. 736, as amended, 77 P.S. §1 et seq. The first petition averred that, as a result of the April 16 incident, Jakel was entitled to total disability benefits and medical expenses for the period September 13 to October 29. The second petition averred that, as a result of the December 10 incident, Jakel was entitled to total disability benefits and medical expenses.

[593]*593The matters were heard together at several hearings before a referee. Jakel testified as to his limited educational and occupational background. He also testified as to the April work incident and the constant pain he suffered from April until September. The December incident was also described.

Dr. Ferrara testified by way of deposition. He painted a verbal portrait of a large, strong man crying out and writhing in pain so consuming in its intensity that it was unrelieved by heavy doses of narcotics. He ventured the opinion on direct examination that among the causes of Jakel’s September condition were occupational factors. When pressed, the surgeon explained that the cause of Jakel’s problem was his preexisting spinal pathology but that the triggering or aggravating factor of disability occasioned by suffering and pain in September was the April work episode. During a vigorous cross-examination, Dr. Ferrara again explained that, while Jakel’s occupation did not “cause” his problem, it aggravated it. However, in a partially nonresponsive answer he apparently retreated from previous testimony.

In addition, a portion of Dr. Ferrara’s February 13, 1975 deposition testimony touched on Jakel’s ability to return to some form of gainful employment. The surgeon acknowledged January 1975 correspondence in which he supposed Jakel capable of provisional employment on a part-time, limited basis, provided such employment did not entail heavy lifting. When asked on cross-examination what kind of work Jakel could presently do, Dr. Ferrara responded that he could handle a little more than that, but not much.1

[594]*594After the hearings, the referee awarded benefits to Jakel on both claim petitions. When the Board affirmed the awards, the employer appealed to this Court.

Before' this Court, the employer raises two arguments. First, it contends that the record' lacks such substantial competent evidence as is necessary to support the referee’s findings concerning the relation between Jakel’s April work incident and his September condition. Second, it contends that the referee capriciously disregarded expert testimony that work which Jakel could perform since the December incident was available. In this difficult case, our limited scope of review compels us to reject these contentions.

In a workmen’s compensation case where the party with the burden of proof prevailed before the referee and the Board took no additional evidence, review by this Court is a limited one. We must determine only whether or not constitutional rights were violated, an error' of law was committed, or a necessary finding of fact was unsupported by substantial evidence, leaving questions of evidentiary weight and credibility to the referee. Workmen’s Compensation Appeal Board v. Philco Ford Corp., 27 Pa. Commonwealth Ct. 298, 366 A.2d 620 (1976). Such is our scope of review on the first issue. On the second issue, where the decision below was against the party with the' burden of proof,2 our review is limited to determining whether the findings of fact are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. Workmen’s Compensation Appeal Board v. Pennsylvania School [595]*595Boards Ass’n, 28 Pa. Commonwealth Ct. 618, 369 A.2d 503 (1977) (hereinafter Valdes). In either case, the party who prevailed below is entitled to the benefit of the most favorable inferences to be drawn from the evidence. Workmen’s Compensation Appeal Board v. Thomas V. Ferrick, Inc., 23 Pa. Commonwealth Ct. 591, 353 A.2d 490 (1976).

In reviewing the instant record, we are mindful of the referee’s unique fact-finding role. Questions of credibility and the choice between conflicting testimony are for the referee, not this Court. Workmen’s Compensation Appeal Board v. Quick, 25 Pa. Commonwealth Ct. 203, 359 A.2d 852 (1976); see Valdes, supra. Among such questions are those arising from a witness’ inconsistent testimony, Quick, supra; Workmen’s Compensation Appeal Board v. Czepurnyj, 20 Pa. Commonwealth Ct. 305, 340 A.2d 915 (1975), as well as from conflicting testimony of two or more witnesses. Having assessed the credibility of such evidence, the referee may, in lawful exercise of his broad discretion, accept or reject the testimony of any witness in whole or in part. See Berdy v. Glen Alden Corp., 202 Pa. Superior Ct. 525, 198 A.2d 329 (1964). If the testimony accepted constitutes such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, see, e.g., Workmen’s Compensation Appeal Board v. Auto Express, Inc., 21 Pa. Commonwelath Ct.

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Bluebook (online)
377 A.2d 1007, 31 Pa. Commw. 590, 1977 Pa. Commw. LEXIS 1028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-refrigerator-equipment-co-v-commonwealth-pacommwct-1977.