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PIERINO MASCI v. WORKMEN'S COMPENSATION APPEAL BOARD (HARMAR COAL COMPANY AND OLD REPUBLIC INSURANCE COMPANY) (11/04/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 4, 1982.

PIERINO MASCI, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (HARMAR COAL COMPANY AND OLD REPUBLIC INSURANCE COMPANY), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Pierino Masci v. Harmar Coal Company, No. A-80311.

COUNSEL

Margaret D. Blough, for petitioner.

George H. Thompson, with him Paul E. Sutter, Hirsch, Weise & Tillman, for respondents.

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

Author: Craig

[ 69 Pa. Commw. Page 535]

Claimant Pierino Masci appeals from a June 23, 1981 order of the Workmen's Compensation Appeal Board which affirmed the referee's decision in favor of employer Harmar Coal Company, terminating compensation being paid to claimant for total disability

[ 69 Pa. Commw. Page 536]

    under The Pennsylvania Workmen's Compensation Act.*fn1

The claimant suffered a work-related injury to his neck and back on March 10, 1976, and received workmen's compensation benefits. The employer filed a petition for termination on June 3, 1977. The referee concluded that all disability from the injury had ended by March 18, 1977. The board affirmed.

The claimant contends that no substantial evidence supported the referee's decision to terminate the claimant's benefits because three medical experts reported that claimant was still disabled and only employer's single medical expert maintained the disability had ceased.

In Modern Transfer v. Workmen's Compensation Appeal Board, 47 Pa. Commonwealth Ct. 592, 597, 408 A.2d 900, 902 (1979), we held that, "the weighing of the testimony is solely within the province of the referee and his decision to accept the testimony of one competent medical witness over another will not be disturbed on appeal." In deciding against the claimant, the referee relied upon the deposition testimony of Dr. Botkin, the employer's witness, which the referee specifically found as a matter of fact to be the more credible testimony.

Claimant does not contest Dr. Botkin's qualifications. Therefore, we cannot find that the referee's decision was unsupported by substantial evidence.

[ 69 Pa. Commw. Page 537]

Order

Now, November 4, 1982, the order of the Workmen's Compensation Appeal Board, No. A-80311, dated June 23, 1981, is affirmed, and claimant's appeal is dismissed.

Disposition

Affirmed.


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