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JOHN R. NYE v. COMMONWEALTH PENNSYLVANIA (05/29/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 29, 1979.

JOHN R. NYE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND K & H CONSTRUCTION CO., INC., RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of John R. Nye v. K & H Construction Co., Inc. and Commonwealth of Pennsylvania, No. A-72322.

COUNSEL

Charles A. Bressi, Jr., for petitioner.

Sandra S. Christianson, Assistant Attorney General, for respondent, Commonwealth.

John C. Mascelli, with him Joseph A. Murphy, Anthony J. Piazza, and Lenahan, Dempsey, Murphy & Piazza, for respondent, K and H Construction Co.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 43 Pa. Commw. Page 99]

The Workmen's Compensation Appeal Board (Board) affirmed a referee's dismissal of a claim for compensation under Section 108(q) of The Pennsylvania Workmen's Compensation Act*fn1 and Section

[ 43 Pa. Commw. Page 100301]

(i) of the Pennsylvania Occupational Disease Act.*fn2 John R. Nye appeals. We affirm in part.*fn3

Claimant, John R. Nye, filed two claim petitions: one on January 17, 1975, under Section 301(i) of the Pennsylvania Occupational Disease Act and the second on August 14, 1975, under Section 301(g) of the Act*fn4 claiming that he suffered from totally disabling anthracosilicosis as a result of his various mining employment from 1951 to May 14, 1974. The August 14th petition was amended to enable him to proceed under Section 108(q) of the Workmen's Compensation Act.

After a hearing, a referee denied Nye's claim finding that he was not totally or permanently disabled as a result of anthracosilicosis. The sole question in this appeal is whether the referee, in reaching his conclusions, capriciously disregarded competent evidence.

[ 43 Pa. Commw. Page 101]

Questions of fact and the resolution of testimonial conflicts are for the referee. The mere fact he accepts the testimony of one competent medical witness rather than the conflicting testimony of an equally competent medical witness is not capricious conduct. Workmen's Compensation Appeal Board v. International Furnace Corp., 21 Pa. Commonwealth Ct. 390, 345 A.2d 780 (1975); see also Kuchinski v. Workmen's Compensation Page 101} Appeal Board, 38 Pa. Commonwealth Ct. 210, 392 A.2d 348 (1978).

In this case it is clear from the record that the relevant medical testimony was conflicting. Three doctors testified as to the cause of Claimant's disability. One doctor stated that in his opinion Claimant-Nye was totally and permanently disabled due to anthracosilicosis and emphysema. Contrariwise, the two other physicians testified that Nye was not disabled due to anthracosilicosis but suffered from heart disease.*fn5

The referee, in adjudging the credibility of the witnesses, simply chose to believe the physicians who testified in opposition to Nye's claim. There being no doubt that the doctors' testimony was competent we see no reason to disturb the findings.

Accordingly, we

Order

And Now, this 29th day of May, 1979, the order of the Workmen's Compensation Appeal Board affirming the referee's findings of fact, conclusions of law and order is hereby affirmed and Petitioner's claim for benefits under Section 108(q) of the Workmen's Compensation Act is dismissed.

Disposition

Affirmed in part.


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