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decided: February 6, 1981.


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.


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, found no objective evidence of disability and remained "reluctant" to state that claimant was in fact disabled.

[ 56 Pa. Commw. Page 496]

Assuming arguendo that the medical testimony contained in the two depositions is fundamentally inconsistent, the referee nevertheless did not overstep his bounds of discretion. In addition to resolving questions of credibility and choosing between conflicting testimony the referee is empowered to accept or reject the testimony of any witness in whole or in part. LoRubbio v. Workmen's Compensation Appeal Board, 49 Pa. Commonwealth Ct. 529, 411 A.2d 866 (1980). Thus, the referee could properly believe all of the testimony contained in the first deposition, while completely rejecting that contained in the second deposition.

In keeping with this discretionary power, the referee also attributed credibility to Mike Vincent, an investigator testifying on the employer's behalf. Vincent stated that he observed claimant performing various carpentry skills on May 4, 1978. Vincent further testified that claimant admitted to him that he had been engaged in carpentry work for the past nine months. Therefore, we are satisfied that the record contains substantial evidence to support the findings of fact made by the referee.

Accordingly, we enter the following


And Now, this 6th day of February, 1981, the order of the Workmen's Compensation Appeal Board at Docket No. A-77327, dated December 7, 1979, is affirmed.



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