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RICHARD J. MARTIN v. COMMONWEALTH PENNSYLVANIA (02/06/81)

decided: February 6, 1981.

RICHARD J. MARTIN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND HORNE BROTHERS, INC., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Richard J. Martin v. Horne Brothers, Inc., No. A-77327.

COUNSEL

David K. McMullin, for petitioner.

Edward A. McFarland, Thomson, Rhodes & Grigsby, for respondent, Horne Brothers, Inc.

Judges Mencer, Rogers and Palladino, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 56 Pa. Commw. Page 493]

Richard J. Martin (claimant) has appealed from an order of the Workmen's Compensation Appeal Board (Board), affirming the referee's decision to terminate compensation. We affirm.

On April 29, 1977, claimant was injured in a fall while in the course of his employment as a carpenter's helper for Horne Brothers, Inc. (employer). Dr. James D'Antonio, an orthopedic surgeon, began treatment of claimant on April 30, 1977. His examination revealed that claimant had a restricted range of motion, with

[ 56 Pa. Commw. Page 494]

    pain and tenderness, in the right shoulder. Dr. D'Antonio continued to treat claimant's condition and subsequently diagnosed a complete acromial-clavicular separation in the right shoulder. On July 2, 1977, claimant underwent surgery performed by Dr. D'Antonio to correct this condition. In a follow-up examination, performed on September 28, 1977, Dr. D'Antonio gave claimant a release to return to work as of October 3, 1977. In December, the employer filed a termination petition, alleging that claimant had recovered from his injury and was able to return to work.

The sole question presented to us on appeal is whether the referee's finding that claimant had fully recovered from his injury is supported by substantial evidence. We are convinced that it is.

The crux of this appeal lies in the testimony of Dr. D'Antonio recorded in two depositions. The first deposition was taken on April 24, 1978 and offered into evidence by the employer. In this deposition, Dr. D'Antonio testified that, as of September 28, 1977, claimant was essentially asymptomatic, with a full range of motion in the shoulder and no objective evidence of physical impairment. He stated unequivocally that claimant was able to return to work.*fn1

[ 56 Pa. Commw. Page 495]

Claimant was further examined by Dr. D'Antonio on May 10, 1978, in response to claimant's persistent complaints of pain in his right shoulder. On September 18, 1978, the doctor was again deposed, this time at claimant's behest. In this deposition, Dr. D'Antonio seems less certain of claimant's medical progress and more willing to concede the reality of claimant's subjective symptoms of pain.*fn2 The doctor, however, ...


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