Unity Builders, Inc. v. Workmen's Compensation Appeal Bd.

• Decision Date: 15 April 1980
• Citation: 413 A.2d 40,50 Pa.Cmwlth. 527
• Parties: UNITY BUILDERS, INC. and Fireman's Insurance Company, Petitioners, v. Commonwealth of Pennsylvania, WORKMEN'S COMPENSATION APPEAL BOARD and Thomas Ellisor, Respondents.
• Court: Pennsylvania Commonwealth Court

413 A.2d 40

50 Pa.Cmwlth. 527

UNITY BUILDERS, INC. and Fireman's Insurance Company, Petitioners, v. Commonwealth of Pennsylvania, WORKMEN'S COMPENSATION APPEAL

BOARD and Thomas Ellisor, Respondents.

Commonwealth Court of Pennsylvania.

April 15, 1980

Argued March 13, 1980.

Edward A. McFarland, Thomson, Rhodes &amp Grigsby, Pittsburgh, for petitioner.

Clifford A. Johns, Jr., McKeesport, for respondents.

Before CRUMLISH, Jr., President Judge, ROGERS and CRAIG, JJ.

OPINION

ROGERS Judge.

Unity Builders, Inc. and its insurer, Fireman's Insurance Company (Petitioners) have appealed from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's dismissal of the petitioners' petition for termination of workmen's compensation benefits being paid by petitioners to Thomas Ellisor.

On September 12, 1977, Ellisor sustained an injury to his neck in the course of his employment with Unity Builders, Inc. Compensation benefits were paid to Ellisor for total disability pursuant to a compensation agreement between Ellisor and petitioners. On April 24, 1978, petitioners filed a termination petition with a request for a supersedeas to be effective as of that date. Petitioners subsequently amended their requests for supersedeas, to have it effective as of May 26, 1978, which the referee granted.

At the referee's hearings, petitioners produced two medical expert witnesses, one of whom testified unequivocally that Ellisor was no longer generally disabled as a result of his injury of September 12, 1977, and specifically that Ellisor did not suffer from spastic torticollis, a condition which renders neck movement painful. Ellisor adduced the testimony of one medical expert Dr. Ravella, who testified unequivocally that Ellisor suffered from spastic torticollis. When testifying regarding the causal relationship between Ellisor's condition and his September 12, 1977 injury, however, Dr. Ravella answered in terms which the referee found to be equivocal. Ellisor testified that he had had no problems with his neck prior to his September 12, 1977 injury and that at the time of the hearing he was still suffering from neck pains which prevented him from seeking employment.

The referee found, and the Board affirmed, that Ellisor suffered from spastic torticollis which was caused by his September 12, 1977 injury and that petitioners had failed to prove that all disability resulting from the September 12, 1977 injury had ceased.

Petitioners contend that some of the referee's findings of fact cannot be sustained without a capricious disregard of competent evidence in the record and that, if these findings are sustainable, they are inconsistent with other of the referee's findings. The findings of the referee objected to are:

"14. It was the doctor's (Dr. Ravella) opinion that spastic torticollis resulted from cervical trauma, psychological factors, a progressive curia condition of metabolic acidosis. The doctor ruled out the later three causes as factors in the claimant's case and was of the opinion that the most possible origin was the trauma sustained on September 12, 1977.

18. Although the testimony of Dr. Ravella is equivocal as to the causation of the spastic torticollis, he ruled out all causative factors with the exception of trauma which he concluded was possibly the causative factor.

19. In evaluating the claimant's testimony and the medical testimony and reports, your Referee is convinced and, accordingly, finds that the claimant as a result of his injuries of September 12, 1977, continued to be totally disabled.

20. The defendant having failed to prove that all disability resulting from the September 12, 1977 injury has in fact terminated, must have their (sic) prayer for a termination of compensation denied."

A capricious disregard of evidence "occurs 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." Ney v. Workmen's Compensation Appeal Board, 15 Pa.Cmwlth. 381, 384, 327 A.2d 402, 403 (1974). The petitioners contend that findings of fact 14 and 18 constitute a capricious disregard of Dr. Ravella's testimony, for at no time did Dr. Ravella specifically state that the September 12, 1977 injury was the "most possible origin" of Ellisor's spastic torticollis, nor did Dr. Ravella "rule out all causative factors with the exception of trauma." We disagree. Our reading of Dr. Ravella's testimony in its totality, as we must, Owens v. Workmen's Compensation Appeal Board, 39 Pa.Cmwlth. 510, 514, 395 A.2d 1032, 1034 (1979), convinces us that the essence of Dr. Ravella's testimony was exactly what the referee found it to be. For example, Dr. Ravella in response to questioning concerning other possible origins of Ellisor's spastic torticollis eliminated every origin other than trauma.

The petitioners next contend that if findings of fact 14 and 18 are sustained, then these findings are inconsistent with findings of fact 19 and 20 because Dr Ravella's testimony was equivocal and therefore incompetent and thus cannot form the basis for the referee's findings that Ellisor remains totally...