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FRANK HINES v. COMMONWEALTH PENNSYLVANIA (02/02/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 2, 1982.

FRANK HINES, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, MACK TRUCKS, INC. AND ESIS, INC., RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Frank Hines v. Mack Trucks, Inc. and Esis, Inc., No. A-79893.

COUNSEL

Jeffrey B. Matzkin, for petitioner.

Robert A. Weinert, for respondent, Mack Trucks, Inc.

President Judge Crumlish, Jr. and Judges Craig and MacPhail, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Palladino did not participate in the decision in this case.

Author: Crumlish

[ 64 Pa. Commw. Page 372]

Frank Hines appeals from a Workmen's Compensation Appeal Board denial of benefits. We affirm.

Hines, allegedly injured at work, was discharged when he was unable to perform normal work assignments. The Board affirmed a referee's decision which concluded that Hines failed to connect his alleged injury to his employment through adequate medical evidence.

[ 64 Pa. Commw. Page 373]

The claimant, under The Pennsylvania Workmen's Compensation Act,*fn1 has the burden of establishing the right to compensation and all elements necessary to support an award.*fn2 Halaski v. Hilton Hotel, 487 Pa. 313, 317, 409 A.2d 367, 369 (1979). Hines argues that he met his burden by presenting the testimony of two Board-certified physicians.

The referee is the ultimate fact-finder where the Board takes no additional evidence. Rowan v. Workmen's Compensation Appeal Board, 58 Pa. Commonwealth Ct. 56, 61, 426 A.2d 1304, 1307 (1981). A referee, being the judge of credibility, is vested with broad discretion and may accept or reject any witness' testimony, including that of 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). Thus, rejection of medical testimony does not, by itself, constitute capricious disregard of competent evidence. Workmen's Compensation Appeal Board v. Keller, 27 Pa. Commonwealth Ct. 263, 267, 366 A.2d 623, 625 (1976).

A review of the record demonstrates that neither physician was able to base his testimony on any adequate objective findings.*fn3 The referee rejected the

[ 64 Pa. Commw. Page 374]

    proffered medical testimony since it was based on subjective, rather than objective, evidence. Mindful of our narrow scope of review, we find no capricious disregard of competent evidence.

Affirmed.

Order

The Workmen's Compensation Appeal Board order No. A-79893, dated April 23, 1981, is affirmed.

Judge Palladino did not participate in the decision in this case.

Disposition

Affirmed.


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