84 Pa. Commw. 253 | Pa. Commw. Ct. | 1984
Opinion by
Before this Court is an appeal by George Holshue (Petitioner) from a decision and order of the Workmen’s Compensation Appeal Board (Board) affirming a referee’s denial of Petitioner’s petition to set aside a final receipt. We affirm.
Petitioner suffered injuries to his lower back and right leg on August 1, 1977, while unloading a trailer of pallets, part of his job as a maintenance man for Bobideau Express (Employer). Workmen’s compen
It is axiomatic that, to have a petition to set aside a final receipt granted, the petitioner must establish by clear and convincing evidence that all disability attributable to the prior work related injury had not terminated at the point in time when the final receipt was executed. Sihelnik v. Workmen's Compensation
In his appeal, Petitioner first asserts that the referee, in finding of fact 6, wrongfully attributed to him the burden of proving that he has sought employment which is compatible with his condition. Finding of fact 6 reads:
The Referee finds that Mr. Holshue has not made good faith efforts to secure employment since August 1, 1977. On May 3, 1978 he made one effort to secure light work with his former employer. Apart from that he merely testified that “unemployment in New Jersey had no light work” for him.
While true that it is not part of a petitioner’s burden in a case like this to establish that he has sought employment, after a thorough review of the record this Court is convinced that the above finding does not signify an error of law on the part of the referee in making his decision. At most, it is indicative of some of the factors which contributed to the referee’s assessment of Petitioner’s credibility, or lack thereof,
The next challenge by Petitioner herein pertains to a finding by the referee in which he drew a negative inference from Petitioner’s failure to present testimony by the two physicians who treated him and referred him to Dr. Ralston, or to explain why it was not available. Petitioner argues that, inasmuch as the two doctors concerned, Eckbold and Brown, live and practice in New Jersey, they are not subject to subpoena and therefore were not under Petitioner’s control and it was thus improper to draw such an inference. Section 422 of The Pennsylvania Workmen’s Compensation Act (Act),
Petitioner also challenges those findings of the referee, as made in capricious disregard of the evidence, wherein he rejects the testimony of Dr. Ralston regarding Petitioner’s knee injury as being equivocal and accepts that of Employer’s physician
Finally before us is a challenge to the surveillance films of Petitioner. He asserts that the referee erred “by relying in his decision on the incompetent evidence presented by an investigator [Mr. Turner] . . . who showed films of an unidentified individual whose face never appeared on the film . . . .” We disagree. Surveillance films, even when taken without the consent of the subject, may be used as evidence for the purpose of establishing facts in a workmen’s compensation case. Isadore v. Workmen’s Compensation Appeal Board (Owens-Illinois), 77 Pa. Commonwealth Ct. 346, 465 A.2d 1096 (1983). In the case at bar, while we are not presented with the film itself, even assuming the subject’s face is not visible, the fact remains that Mr. Turner testified that the person in the film was identified by himself at that time as Petitioner. The credibility and weight to be afforded Mr. Turner’s identification are matters for the referee and there was no capricious disregard in his rejection of Petitioner’s attempt to rebut the film evidence by testifying that all maintenance at the apartment was done by the landlord’s staff. See Spectrum Arena, Inc. v. Workmen’s Compensation Appeal Board, 51 Pa. Commonwealth Ct. 381, 414 A.2d 445 (1980).
Accordingly, the denial of Petitioner’s petition to set aside his final receipt is affirmed.
Order
Now, July 31, 1984, the decision and order of the Workmen’s Compensation Appeal Board in the above captioned matter, dated April 7, 1983, A-84328, is hereby affirmed.
Act of June 2,1915, P.L. 736, as amended.
The Board’s decision places a mysterious emphasis on the fact that the cyst was not established as being related to the employment injury. In actuality, this was irrelevant to the instant, proceedings. Since the referee’s decision was, on the whole, generally affirmed by the Board, there was sufficient review t,o permit us to proceed, especially inasmuch as the scope of review of both the Board and this Court is identical in, these circumstances,