Opinion
October 21, 1985.
Workmen's compensation — Scope of appellate review — Error of law — Capricious disregard of competent evidence — Credibility — Loss of use.
1. In a workmen's compensation case where the party with the burden of proof did not prevail below, review by the Commonwealth Court of Pennsylvania is to determine whether an error of law was committed or competent evidence capriciously disregarded. [317]
2. In a workmen's compensation case, questions of credibility are for the referee, not the reviewing court, and a decision of a referee supported by substantial evidence that a claimant had not lost the use of fingers for all intents and purposes will not be disturbed on appeal although medical testimony to the contrary was also presented. [317]
Submitted on briefs September 10, 1985, before President Judge CRUMLISH, JR., Judge COLINS, and Senior Judge KALISH, sitting as a panel of three.
Appeal, No. 963 C.D. 1984, from the Order of the Workmen's Compensation Appeal Board in case of Henry J. Majdic v. National Standard Company, No. A-84854.
Petition to the Department of Labor and Industry for workmen's compensation benefits. Petition dismissed. Claimant appealed to the Workmen's Compensation Appeal Board. Dismissal affirmed. Claimant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
David I. Fallk, Robert W. Munley, P. C., for petitioner.
Cal A. Leventhal, for appellee, National Standard Company.
Henry J. Majdic (petitioner) appeals from an order of the Workmen's Compensation Appeal Board (Board), which affirmed a decision of the referee dismissing his Claim Petition for the specific loss of four fingers of his right hand. Petitioner had his dominant right hand crushed in a power press while working for National Standard Company. His injuries consisted of traumatization to the joints, tendons, arteries and nerves of four fingers.
On appeal, petitioner contends that the decision of the Board was not supported by substantial evidence. He claims that competent medical evidence in the form of his treating physician's deposition, which supported his claim, was ignored by the referee and the Board. Petitioner argues, therefore, that the decision below should be reversed.
Where, as here, a party with the burden of proof has not prevailed below, our scope of review is limited to a determination of whether an error of law was committed or whether there has been a capricious disregard of competent evidence. Beth Allen Ladder Co. v. Workmen's Compensation Appeal Board, 53 Pa. Commw. 323, 417 A.2d 854 (1980).
Petitioner testified before the referee that he has returned to his previous job. He also stated that he can drive a car and dress himself (including buttons and shoelaces), and that he goes bowling and hunting. Petitioner also demonstrated various hand movements at the referee's request.
Dr. Malloy, petitioner's medical witness, testified through a deposition that, in his opinion, petitioner had lost the use of his hand for all intents and purposes. This was, however, the doctor later stated, purely from an employment aspect. The doctor's testimony also included an admission that petitioner could hold a hammer, or almost any object, but could not squeeze it tightly, that petitioner could write with his affected hand and that the unimpaired fingers (the thumb and pinky) constituted 55% of the hand's useful functioning.
We find no error in the referee's findings as affirmed by the Board. Questions of credibility and the resolution of conflicts in testimony, as well as the weight to be given the evidence, are matters within the exclusive province of the referee, Roadway Express, Inc. v. Workmen's Compensation Appeal Board, 54 Pa. Commw. 169, 420 A.2d 774 (1980); Container Corporation of America v. Workmen's Compensation Appeal Board, 59 Pa. Commw. 367, 429 A.2d 1264 (1981), who is free to accept or reject a witness' testimony in whole or in part. Mountz v. Workmen's Compensation Appeal Board, 33 Pa. Commw. 583, 382 A.2d 507 (1978). The referee was, therefore, well within his power in rejecting Dr. Malloy's opinion as to petitioner's loss of use "for all intents and purposes" and to make his own factual determination based on the other evidence presented.
For the reasons stated above, the order of the Board is affirmed.
ORDER
AND NOW, October 21, 1985, the order of the Workmen's Compensation Appeal Board, No. A-84854, dated March 1, 1984, is affirmed.