74 Pa. Commw. 470 | Pa. Commw. Ct. | 1983
Opinion by
Claimant (Louis J. Cugini) appeals here from an order of the Workmen’s Compensation Appeal Board (Board) which affirmed the decision of a referee holding .that the Employer (Arlen Realty) failed to meet its harden of proving
The referee ordered that additional compensation for total disability should he awarded to Claimant from April 25, 1977 through May 8, 1977 and granted suspension of benefits as of May 9,1977.
Claimant .sustained a work related injury on October 29,1976, while working for .the Employer as a construction engineer. He was .paid total disability benefits from October 30,1976 through April 24,1977, for a fractured left wrist and fractured vertebrae. On May 2, 1977, Employer filed a Petition for Termination, based on an affidavit of Recovery by William H. Simon, M.D., .alleging that all compensable disability terminated on or before April 25, 1977. After considering tbe testimony of Manford Abrahamson, M.D., Claimant’s treating .physician, and ¡the testimony of tbe
Claimant was not able to return to work as of April 25, 1977, but was able to return to light work as of May 9, 1977. Said light work was to. include no lifting over 25 lbs., no repetitive stooping or squatting 'and no repetitive bending. Claimant was to utilize back brace [si©] to prevent him from leaning too far forward. Claimant bad residuals of the fracture of his wrist and was suffering a .soft tisisue lumbosacral strain; however, the fracture of his vertebrae at the Til level was healed firmly and was not producing disabling symptomatology.
In his appeal, the 'Claimant contends that ¡the above quoted finding of fact is not supported by substantial evidence.
A. Light work only... [h]e cannot do any heavy lifting, stooping or bending.
Clearly, this testimony constiutes ¡substantial evidence upon which the referee could base his finding. It is hard to imagine ¡any testimony .that could more closely parallel the referee’s finding.
Claimant next challenges the referee’s decision alleging that the testimony of Employer’s rehabilitation and vocational witness (Mr. Charles iSmolkin) is subject to challenge because he never 'examined Claimant.
Claimant also avers that the Employer failed to sustain his burden of proving the availability of work within Claimant’s capabilities since there was no testimony by Mr. Smolkin regarding Claimant’s ability to
The Board acted properly in affirming the referee. We affirm the Board’s order.
Order
It is ordered .that the order of the Workmen’s Compensation Appeal Board dated October 20, 1981 and numbered A-80561 is hereby affirmed.
When 'tbe Employer is the moving party, as here where it filed a petition .to terminate or modify benefits, it has the burden of showing either .that (1) disability has ended or that (2) it has been reduced and that work is available to the claimant and the claimant is capable of doing such work. Purolator Security, Inc. v. Workmen’s Compensation Appeal Board, 61 Pa. Commonwealth Ct. 486, 434 A.2d 235 (1981).
In a workmen’s compensation case, the referee is the ultimate finder of fact where, as here, the Board takes no additional evidence. Rowan v. Workmen’s Compensation Appeal Board, 58 Pa. Commonwealth Ct. 56, 426 A.2d 1304 (1981).
Claimant argues that the referee ignored testimony given by Dr. Abrahamson to the effect that he had a continuing disability extending for a period of time beyond May 9, 1977. However, we have stated many times where all the medical evidence is competent, the fact finder’s function is to select between conflicting medical testimony. The referee, in the exercise of a broad discretion, may accept or reject the testimony of any witness including a medical witness in whole or in part. Novak v. Workmen’s Compensation Appeal Board, 59 Pa. Commonwealth Ct. 596, 430 A.2d 703 (1981). The referee acted properly here.
In his brief, Claimant uses the wrong scope of review. He uses the term capricious disregard; however, in a case such as this, where the Employer has the burden of proof below and is successful, our scope of review is substantial evidence. Workmen’s Compensation Appeal Board v. Kelly Steel Erectors, Inc., 25 Pa. Commonwealth Ct. 329, 361 A.2d 478 (1976).
The Claimant also contends that the referee’s findings are somehow flawed because the referee adopted the suggested findings of fact submitted to him by the Claimant. This is not true. So long as substantial evidence exists in the .record to support those findings, the referee has properly exercised his fact finding duties.
Mr. Smolkin was given a hypothetical question to answer, setting forth all of the relevant facts of Claimant’s case — this medical condition, the doctor’s diagnosis, his usual work activities and his education and work 'background. Based on these hypothetical facts, Mr. Smolkin was asked to form an opinion with respect to whether there would be work available for Claimant in the Baltimore area. Mr. Smolkin also testified 'that he did make an effort to interview Claimant but was unable to make contact.