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JAMES WILLIAM COX v. COMMONWEALTH PENNSYLVANIA (06/16/81)

decided: June 16, 1981.

JAMES WILLIAM COX, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ATLAS RAILROAD CONSTRUCTION CO., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of James William Cox v. Atlas Railroad Construction Co., No. A-77491.

COUNSEL

Albert C. Odermatt, Jr., Weisel, Xides & Odermatt, for petitioner.

James W. Young, Jr., Sharlock, Repcheck, Engel & Mahler, for respondents.

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

Author: Palladino

[ 60 Pa. Commw. Page 60]

James W. Cox (Claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed the order of a referee terminating benefits to Claimant. We affirm.

Claimant, a railroad track construction laborer for the Atlas Railroad Construction Company (Employer), incurred an injury to his back for which he received workmen's compensation benefits. Seven months after the injury, Employer filed a Termination Petition. Claimant responded averring that he had not recovered from his injury, was not able to resume his previous occupation and was still undergoing medical treatment.

At hearings before a referee from the Bureau of Worker's Compensation, Employer presented medical testimony to show that Claimant had recovered as of the date of the Termination Petition. Claimant countered with medical testimony to show that his disability from the accident continued.

Following these hearings, the referee terminated benefits. The Board took no new evidence and affirmed. Claimant, on appeal to this Court, contends that the Findings of Fact are inconsistent, unsupported

[ 60 Pa. Commw. Page 61]

    by competent and substantial evidence and the product of a capricious disregard of competent evidence.

The employer filing a Termination Petition has the burden of proving that all work-related disability has ceased. Walther v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 122, 388 A.2d 1166 (1978). Where the party with the burden of proof prevailed before the referee and the Board took no additional evidence, as in the instant case, this Court's scope of review is limited to determining whether constitutional rights were violated, an error or law was committed or a necessary finding of fact was unsupported by substantial evidence. Lookout Volunteer Fire Company v. Workmen's Compensation Appeal Board, 53 Pa. Commonwealth Ct. 528, 418 A.2d 802 (1980).

Questions of evidentiary weight and credibility are left to the referee. City of Williamsport v. Workmen's Compensation Appeal Board, 55 Pa. Commonwealth Ct. 618, 423 A.2d 817 (1980). In evaluating the evidence the referee is free to "accept or reject the testimony of any witness, including a medical witness, in whole or in part." Bowes v. Inter-Community Action, Inc., 49 Pa. Commonwealth Ct. 612, 618, 411 A.2d 1279, 1281 (1980). Where, as in the instant case, conflicting medical testimony is offered, such conflicts are for the ...


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