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GLORIA BARDO v. COMMONWEALTH PENNSYLVANIA (11/19/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 19, 1981.

GLORIA BARDO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND KENTUCKY FRIED CHICKEN, INC., RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Gloria Bardo v. Kentucky Fried Chicken, Inc., No. A-79338.

COUNSEL

Howard L. Rubenfield, for petitioner.

William R. Brown, MacDonald, Illig, Jones & Britton, for respondent, Kentucky Fried Chicken, Inc.

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

Author: Williams

[ 62 Pa. Commw. Page 498]

This is an appeal from an order of the Workmen's Compensation Appeal Board (Board). The Board's order affirmed a referee's decision granting a petition to terminate disability benefits to Gloria Bardo (claimant).

On April 26, 1977 claimant pulled a tendon in her right wrist in the course of her employment with Kentucky Fried Chicken, Inc. Thereafter, she received total disability benefits under The Pennsylvania Workmen's Compensation Act.*fn1 On October 6, 1978 the employer and its insurer filed a petition to terminate wherein it was alleged that claimant's disability had ceased and that she was able to return to work.

At a hearing held before the referee, the employer presented the testimony of Dr. Karl F. Frankovitch, an orthopedic surgeon. Dr. Frankovitch had examined claimant on three (3) occasions, the last of these being October 2, 1978. He had diagnosed claimant's condition as DeQuervains disease. Surgery to correct this condition had been performed on June 2, 1977. Based upon the examination of October 2, 1978, Dr. Frankovitch concluded that there was no objective evidence of any disability. It was his opinion that claimant's disability had ceased and that she was able to return to work as of October 3, 1978.

[ 62 Pa. Commw. Page 499]

In rebuttal, claimant offered the testimony of Dr. Samuel Sherman, a specialist in rehabilitation medicine. Dr. Sherman had examined claimant on May 1, 1979. It was his opinion that claimant was suffering from chronic tendonitis of the right wrist and that she could not return to her work.

Based upon the foregoing testimony, the referee concluded that claimant's disability had ceased and terminated as of October 3, 1978. Accordingly, the petition to terminate claimant's benefits was granted. After affirmance of the referee's decision by the Board, claimant's appeal to this court followed.

The claimant urges that the referee's finding is not supported by substantial evidence.*fn2 Specifically, she asserts that Dr. Frankovitch's testimony is so equivocal that it cannot support the conclusion that claimant's disability had ceased as of October 3, 1978. She directs our attention to certain portions of Dr. Frankovitch's testimony in an effort to have us conclude that it was reversible error for the referee to have adopted the opinion stated by the doctor on direct examination.*fn3

[ 62 Pa. Commw. Page 500]

It is well-established that in workmen's compensation cases medical opinion testimony must be unequivocal and not based on mere possibilities. Nonetheless, there is no requirement that all of the underlying medical evidence point consistently and unerringly toward the conclusion reached by the witness or that it be the only conclusion possible. Romanski v. Workmen's Compensation Appeal Board, 33 Pa. Commonwealth Ct. 273, 381 A.2d 508 (1978).

Read in its entirety, Dr. Frankovitch's testimony concerning the cessation of claimant's disability was patently unequivocal. The doctor stated on direct examination that he found no objective evidence of any

[ 62 Pa. Commw. Page 501]

    disability during his examination of claimant on October 2, 1978. He further testified that, based on the aforesaid examination, it was his opinion that claimant was able to return to work as of October 3, 1978.*fn4 Moreover, many of the statements made by Dr. Frankovitch on cross-examination were given in response to hypothetical questions.*fn5 We do not read such testimony

[ 62 Pa. Commw. Page 502]

    as a retreat from the positiveness of the opinion expressed by the witness on direct examination. It rather demonstrates the doctor's recognition that other reasonable medical opinions based on the same patient history were possible. The existence of such other possibilities merely affected the weight to be accorded his opinion, and it was within the referee's province as fact-finder to accept the testimony of Dr. Frankovitch and reject that of claimant's physician, Dr. Sherman. Lo Rubbio v. Workmen's Compensation Appeal Board, 49 Pa. Commonwealth Ct. 529, 411 A.2d 866 (1980). See also, Sears, Roebuck & Co. v. Workmen's Compensation Appeal Board, 48 Pa. Commonwealth Ct. 161, 409 A.2d 486 (1979).

For the reasons set forth above, we affirm the order of the Board.

Order

And Now, the 19th day of November, 1981, the order of the Workmen's Compensation Appeal Board dated December 4, 1980, is affirmed.

Disposition

Affirmed.


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