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JOHN SEXTON AND COMPANY v. COMMONWEALTH PENNSYLVANIA (03/02/81)

decided: March 2, 1981.

JOHN SEXTON AND COMPANY, DIVISION OF BEATRICE FOODS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND SAM S. ZORIA, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Sam S. Zoria v. John Sexton & Company, Division of Beatrice Foods, No. A-77272.

COUNSEL

John J. McAuliffe, Jr., Wojdak & McAuliffe, for petitioner.

Carl M. Mazzocone, P.C., for respondent.

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

Author: Craig

[ 57 Pa. Commw. Page 219]

In this workmen's compensation appeal, the employer*fn1 questions an award of benefits by the board,*fn2 affirming a referee's decision awarding benefits to the claimant,*fn3 a truck driver.

[ 57 Pa. Commw. Page 220]

On December 26, 1976, the claimant suffered a work-related injury to his back and ankle when he fell from his truck while making a delivery. The claimant received temporary total disability compensation at the rate of $187 per week from January 24, 1977 through April 14, 1977. The employer filed a termination petition on April 15, 1977, based on a physician's affidavit that claimant's disability had ceased, and, after an answer and hearings, a referee found that the claimant continued to be disabled due to his work-related injury.

On appeal, the employer contends that the referee capriciously disregarded competent evidence by concluding that the claimant had not recovered from his disabling injury.*fn4 We cannot agree.

Here the claimant's medical expert testified that the claimant remained totally disabled due to emotional difficulties emanating from his work-related injuries. The employer's medical expert testified that the claimant would probably benefit emotionally if he went back to work.

We find no error in the referee attaching more weight to the testimony of claimant's medical witness than to that of the employer's medical witness. Determinations as to credibility and the choice between conflicting competent medical testimony are within the province of the referee. Penzoil United, Inc. v. Mitchell, 27 Pa. Commonwealth Ct. 76, 365 A.2d 905 (1976). Moreover, the referee may properly accept testimony of a general practitioner regarding the relationship of a patient's employment to his disability

[ 57 Pa. Commw. Page 221]

    and reject the conflicting testimony of a specialist, and the referee need not specify his reason for the credibility decision. See, City of Hazleton v. Workmen's Compensation Appeal ...


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