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MEARL W. DEREMER v. COMMONWEALTH PENNSYLVANIA (08/21/81)

decided: August 21, 1981.

MEARL W. DEREMER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND R.J. GLASS, INC. ET AL., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Mearl W. Deremer v. R.J. Glass, Inc., No. A-75140.

COUNSEL

T. Dean Lower, for petitioner.

John Bagnato, with him Robert G. Rose, Spence, Custer, Saylor, Wolfe & Rose, for respondents, R.J. Glass, Inc. and Pennsylvania National Mutual Casualty Insurance Company.

President Judge Crumlish and Judges Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 61 Pa. Commw. Page 416]

Mearl W. Deremer (claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's order suspending his compensation benefits.

[ 61 Pa. Commw. Page 417]

The claimant was employed as a truck driver by R.J. Glass, Inc. (employer), and he suffered a job-related injury to his shoulder as a result of a vehicle collision on February 17, 1975. He was thereafter paid compensation for temporary total disability. On August 28, 1975, he underwent a physical examination as requested by the employer, and the employer's physician reported that he was able to return to work as of August 28, 1975. The employer then filed a termination petition asserting that the claimant was able to return to work on August 28, 1975 and that benefits should be terminated as of that date. Although the claimant produced the testimony of several physicians who stated that he was totally disabled, the referee then relied upon contrary testimony and determined that the claimant was able to return to work. He noted, however, that the claimant may still suffer some residual continuing disability, so he suspended but did not terminate benefits, and the Board affirmed this order. The claimant contends here that the referee's findings were not based on substantial evidence*fn1 and that the referee and the Board improperly denied him reimbursement for medical fees incurred after August 28, 1975.

Our review of the record leads us to agree with the referee's finding that the claimant was able to return to work, which we believe was supported by substantial evidence. Five physicians testified as to the nature of the claimant's shoulder injury, but only one testified that there was any objective symptoms of injury. The other testimony indicates that the claimant

[ 61 Pa. Commw. Page 418]

    continues to suffer pain as a result of his shoulder sprain but that the pain cannot be followed to an objective cause. The physicians were divided as to whether or not the claimant was able to return to work. The referee's determination therefore hinged on questions of credibility and on the weight to be afforded conflicting evidence, and, because he is the final arbiter over such questions in cases where the Board took no additional evidence, we will not disturb the referee's findings when they are supported by substantial evidence. Crouse v. Workmen's Compensation Appeal Board, 57 Pa. Commonwealth Ct. 430, 426 A.2d 749 (1981).

The referee and the Board also held that the claimant was not entitled to receive payment for certain medical expenses which he incurred during 1975 and 1976. Reasoning that medical service expenses are reimbursable under Section 306(f) of The Workmen's Compensation Act,*fn2 77 P.S. ยง 531, only if the claimant is suffering from a compensable injury at the time that the expenses are incurred, the referee and the Board concluded that he was not entitled to reimbursement here because his injury was no longer compensable in view of the fact that he was able to return to work. We recognize that the Board's construction of Section 306 is ...


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