Opinion
Argued April 6, 1981
June 8, 1981.
Workmen's compensation — Scope of appellate review — Violation of constitutional rights — Error of law — Findings of fact — Substantial evidence — Conflicting evidence — Medical evidence.
1. In a workmen's compensation case where the party with the burden of proof prevailed below, review by the Commonwealth Court of Pennsylvania is to determine whether constitutional rights were violated, an error of law was committed or findings of fact were unsupported by substantial evidence. [547]
2. In a workmen's compensation case question of credibility and evidentiary conflicts are for the fact finder, and findings supported by competent medical testimony will not be disturbed on appeal although contrary medical evidence was also received. [548]
April 6, 1981, before Judges MENCER, BLATT and MacPHAIL, sitting as a panel of three.
Appeal, No. 1994 C.D. 1979, from the Order of the Workmen's Compensation Appeal Board in case of Robert Birk v. Climate Equipment Company, No. A-75803.
Petition with the Department of Labor and Industry to terminate workmen's compensation benefits. Petition granted. Claimant appealed to the Workmen's Compensation Appeal Board. Decision affirmed. Claimant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Jerome L. Cohen, Cohen, McCall, Rowlands Geist, for petitioner. George A. Spohrer, Hourigan, Kluger Spohrer, for respondents.
The petitioner, Robert Birk, challenges the determination of the Workmen's Compensation Appeal Board (Board) that he is not totally disabled.
In March of 1977, while employed as an air conditioning mechanic, the petitioner suffered a work-related back injury and he and his employer entered into a Notice of Compensation payable whereby he received total disability benefits. In December of 1977, the employer filed a petition to terminate those benefits and, after a hearing at which both sides produced medical testimony, the referee found that the petitioner's disability had ceased on June 5, 1978, and the petition to terminate benefits was granted as of that date. On appeal, the Board affirmed the referee's decision and this petition for review followed.
It is claimed that the referee capriciously disregarded competent evidence by ignoring the testimony of the petitioner's medical witness. The petitioner asserts that his doctor's testimony was more credible than that of the employer's medical expert because his witness had an ongoing and immediate familiarity with the petitioner's condition and his doctor's medical opinion was based upon a more complete and appropriate set of x-rays than those used by the employer's medical witness.
Initially we must note that our proper scope of review in this case is to determine whether substantial competent evidence exists to support the referee's findings, not whether the referee was guilty of capricious disregard of evidence. The employer had the burden of proving that the petitioners' disability had ended, Scott v. Workmen's Compensation Appeal Board, 43 Pa. Commw. 109, 401 A.2d 880 (1979), and, where the party with the burden of proof has prevailed below, our review is limited to determining whether or not constitutional rights are violated, there has been an error of law or a necessary finding of fact is not supported by substantial evidence. American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, 31 Pa. Commw. 590, 377 A.2d 1007 (1977).
The record indicates that the employer's medical witness testified that he had examined the petitioner three times from August of 1977 to June 5, 1978, that on all of these occasions he could find no objective signs of a continuing injury to the petitioner's back, that x-rays revealed nothing unusual and that as of June 5, 1978 the petitioner had no disability and could undertake his prior occupation without restriction.
It is axiomatic that this Court must defer to the referee's conclusion that the employer's medical testimony was the more credible evidence presented, Foster Wheeler Energy Corp. v. Workmen's Compensation Appeal Board, 53 Pa. Commw. 473, 417 A.2d 1334 (1980), and inasmuch as we believe that there is substantial evidence to support the referee's decision, we will affirm the termination of benefits.
ORDER
AND NOW, this 8th day of June, 1981, the order of the Workmen's Compensation Appeal Board granting the petition to terminate benefits in the above-captioned matter is affirmed.
AND IT IS FURTHER ORDERED that judgment be entered in favor of Robert Birk against Climate Equipment Company and/or Royal Globe Insurance Company in the amount of one hundred thirty-five dollars ($135.00) for medical expenses as provided in the order of the referee in the above-captioned matter.