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ROBERT BIRK v. COMMONWEALTH PENNSYLVANIA (06/08/81)

decided: June 8, 1981.

ROBERT BIRK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CLIMATE EQUIPMENT COMPANY, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Robert Birk v. Climate Equipment Company, No. A-75803.

COUNSEL

Jerome L. Cohen, Cohen, McCall, Rowlands & Geist, for petitioner.

George A. Spohrer, Hourigan, Kluger & Spohrer, for respondents.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 59 Pa. Commw. Page 547]

The petitioner, Robert Birk, challenges the determination of the Workmen's Compensation Appeal Board (Board) that he is not totally disabled.

In March of 1977, while employed as an air conditioning mechanic, the petitioner suffered a work-related back injury and he and his employer entered into a Notice of Compensation payable whereby he received total disability benefits. In December of 1977, the employer filed a petition to terminate those benefits and, after a hearing at which both sides produced medical testimony, the referee found that the petitioner's disability had ceased on June 5, 1978, and the petition to terminate benefits was granted as of that date. On appeal, the Board affirmed the referee's decision and this petition for review followed.

It is claimed that the referee capriciously disregarded competent evidence by ignoring the testimony of the petitioner's medical witness. The petitioner asserts that his doctor's testimony was more credible than that of the employer's medical expert because his witness had an ongoing and immediate familiarity with the petitioner's condition and his doctor's medical opinion was based upon a more complete and appropriate set of x-rays than those used by the employer's medical witness.

Initially we must note that our proper scope of review in this case is to determine whether substantial competent evidence exists to support the referee's findings, not whether the referee was guilty of capricious disregard of evidence. The employer had the burden of proving that the petitioner's disability had ended, Scott v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 109, 401 A.2d

[ 59 Pa. Commw. Page 548880]

(1979), and, where the party with the burden of proof has prevailed below, our review is limited to determining whether or not constitutional rights are violated, there has been an error of law or a necessary finding of fact is not supported by substantial evidence. American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 377 A.2d 1007 (1977).

The record indicates that the employer's medical witness testified that he had examined the petitioner three times from August of 1977 to June 5, 1978, that on all of these occasions he could find no objective signs of a continuing injury to the petitioner's back, that x-rays revealed nothing unusual and that as of June 5, 1978 the petitioner had no disability and could undertake his prior occupation without restriction.

It is axiomatic that this Court must defer to the referee's conclusion that the employer's medical testimony was the more credible evidence presented, Foster Wheeler Energy Corp. v. Workmen's Compensation Appeal Board, 53 Pa. Commonwealth Ct. 473, 417 A.2d 1334 (1980), and inasmuch as we believe that there is substantial ...


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