122 Pa. Commw. 410 552 A.2d 336

552 A.2d 336

Russell W. Seilhamer, Petitioner v. Workmen's Compensation Appeal Board (Berwind Railway Service Company), Respondents.

*411Submitted on briefs October 25, 1988,

to Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three.

Stephen D. Wicks, for petitioner.

James S. Routch, Evey, Routch, Black, Dorezas, Magee & Andrews, for respondent, Berwind Railway Service Company.

December 29, 1988:

Opinion by

Judge McGinley,

Russell W. Seilhamer (Seilhamer) áppeals from a decision of the Workmens Compensation Appeal Board (Board) affirming a decision of the Referee to suspend Workmens Compensation Benefits pursuant to Section 413 of The Pennsylvania Workmens Compensation Act (Act),1 77 P.S. §772. We affirm.

Seilhamer was employed by Berwind Railway Service Company (Employer) as a car repairman on May 11, 1982, when he suffered a work-related fracture of *412the right hand. As a result of the injury, Seilhamer began receiving benefits pursuant to a Notice of Compensation Payable. On March 17, 1983, the Employer filed a Petition for Termination. The Referee considered the Petition as a - Petition for Suspension and suspended Seilhamers benefits. The Board affirmed the Referees decision and Seilhamer brought the instant appeal.

Whére there has been evidence presented by both parties our scope of review is limited to a determination of whether there has been a constitutional violation, an error of law or whether the findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92; 525 A.2d 841 (1987).

Seilhamer contends that the Board erred in concluding that the Referees decision that he could return to his previous position was based on substantial evidence.

In a proceeding to suspend or terminate workmens compensation benefits, an employer has the burden of showing that the employees disability has ended or been reduced and that the employee is capable of returning to work. Carmen Paliotta General Construction v. Workmen's Compensation Appeal Board (Tribuzio), 107 Pa. Commonwealth Ct. 143, 528 A.2d 274 (1987). Thus, the issue is whether the testimony of the Employers medical witnesses was unequivocal and constitutes substantial evidence to support the Referees determination that Seilhamer was able to return to work as of March 10, 1983.

The Referees Finding No. 12 states that:

After reviewing all of the evidence of record, the Referee is persuaded by and adopts portions of the credible medical testimony of Dr. Opida and Dr. Osgood and finds as a fact that as of March 10, 1983, the claimant was able to return to his former work without restriction while suf*413fering an undetermined amount of residual disability causally related to his work-related injury of May 11, 1982.

The Referee accepted and relied upon portions of the testimony of the Employers medical witnesses. Such credibility determinations are within the province of the Referee. Id. The record reveals that the testimony of these two doctors does support the Referees finding.

Cicerón L. Opida, M.D. testified by way of deposition that he had examined Seilhamer on February 24, 1983,2 at which time he found no clinical findings which would substantiate a finding of sympathetic dystrophy.3 Despite this testimony, Seilhamer argues that Dr. Opidas testimony does not support, the Referees finding because Dr. Opidas conclusion was invalidated under cross-examination. Seilhamer contends that Dr. Opida admitted that positive thermographic and radiological *414studies would confirm the existence of reflex sympathetic dystrophy, and he notes that he introduced into evidence the results of such tests. A review of the testimony reveals that Dr. Opida considered such evidence when reaching his medical conclusion, and that he discounted its value.4 The testimony of Carroll P. Osgood, M.D., also supports the conclusion that although Seilhamers medical disability may not have permanent*415ly ceased, it did not prevent him from returning to his employment at that time.5

Accordingly, the decision of the Board is affirmed.

Order

And Now, this 29th day of December, 1988, the decision of the Workmens Compensation Appeal Board in the above-captioned matter is affirmed.

Seilhamer v. Workmen's Compensation Appeal Board
122 Pa. Commw. 410 552 A.2d 336

Case Details

Name
Seilhamer v. Workmen's Compensation Appeal Board
Decision Date
Dec 29, 1988
Citations

122 Pa. Commw. 410

552 A.2d 336

Jurisdiction
Pennsylvania

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