OPINION BY JUDGE KRAMER, November 13, 1972:
This is an appeal from an order of the Court of Common Pleas of Philadelphia County affirming the decision of the Workmen's Compensation Board (Board) and dismissing the appeal of Katie Bullock (Bullock), widow of William Bullock, Sr., and on behalf of her minor son. The Board had set aside certain of the Referee's findings of fact and conclusions of the law, whereby the Board denied the claim of Bullock for workmen's compensation benefits claimed to be due as a result of her husband's death.
The sole question presented by Bullock to this Court is whether the decedent at the time of his injury, which
We must first point out, as we said in the case of Scott & Statesman Ins. Co. v. DeAngelis, 3 Pa.Commw. 168, 281 A.2d 172 (1971), and as Section 423 of the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 854 states, the Referee is the Board's agent, and the Board has the power to disregard the findings of fact made by the Referee. The Board may substitute its own findings for those of the Referee so long as it does not capriciously disregard the evidence in making its substituted findings of fact and conclusions of law.
Numerous recent cases reiterate that where the decision of the Board was against the appellant-claimant, our scope of review is whether the Board's findings of fact are consistent with each other and with its conclusions of law, and can be sustained without a capricious disregard of the evidence. See Gayer v. Quaker Hair Goods Co., 5 Pa.Commw. 133, 289 A.2d 763 (1972); Pellegrino v. Baldwin-Lima-Hamilton Corp., 5 Pa.Commw. 150, 289 A.2d 531 (1972); Stump v. Follmer Trucking Co., 4 Pa.Commw. 110, 286 A.2d 1 (1972); Segzda v. Jones & Laughlin Steel Corp., 4 Pa.Commw. 498, 287 A.2d 708 (1972). These cases also hold that it is not within the province of the reviewing court to weigh conflicting testimony or to decide what inferences should be drawn therefrom. The credibility and weight of the testimony is for the Board. The burden is on the claimant to prove the necessary elements which will support a claim for workmen's compensation.
We have also spelled out what a "capricious disbelief" entails. It is not merely disbelieving a witness. To constitute capricious disbelief there must be a willful, deliberate disbelief of an apparently trustworthy
Whether the decedent was in the course of his employment when fatally injured is a question of law to be determined on the basis of the facts. See Newman v. Congregation of Mercy and Truth, 196 Pa.Super. 350, 175 A.2d 160 (1961). The burden of establishing the facts necessary to bring the injury within the course of employment is upon the claimant. See Smith v. Frederick Investment Co., 152 Pa.Super. 534, 33 A.2d 510 (1943). Section 301(c) of the Workmen's Compensation Act (77 P.S. § 411) states not only that the injury by the accident must be in the course of employment, but also that the injury must be sustained ". . . while the employe is actually engaged in the furtherance of the business or affairs of the employer. . . ."
Following these guidelines we have read and reread the record in this case, and we must conclude that there has been no capricious disregard of the evidence presented to the Board. There is sufficient evidence in this record to permit the Board to find that the decedent was present at the plant site of Horn & Hardart Baking Company for purposes outside the scope of his employment. And by virtue of its findings, the Board was correct in its conclusion that the claimant widow, Bullock, was not entitled to any workmen's compensation benefits for the injury and resulting death of her deceased husband. Whether this Court agrees or disagrees with the Board's finding of fact, we have no power to set aside the Board's finding so long as there