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PERRYZADA SIHELNIK v. WORKMEN'S COMPENSATION APPEAL BOARD (NATIONAL SUGAR REFINING COMPANY AND AETNA LIFE & CASUALTY) (05/11/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 11, 1983.

PERRYZADA SIHELNIK, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (NATIONAL SUGAR REFINING COMPANY AND AETNA LIFE & CASUALTY), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Perryzada Sihelnik v. National Sugar Refining Company, No. A-79923.

COUNSEL

Carl Soifer, for petitioner.

Michael B. Egan, for respondents.

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

Author: Craig

[ 74 Pa. Commw. Page 279]

Claimant Perryzada Sihelnik appeals an order of the Workmen's Compensation Appeal Board, which affirmed the decision of the referee denying her petition to set aside a final receipt.

On May 19, 1977, while employed by National Sugar Refining Company, claimant fell and injured her right ankle, knee, arm and thumb. As a result of the injury, she received workmen's compensation until June 20, 1977, when she returned to work at the urging of Dr. Edgar Pennell, the employer's physician who had treated her. Thereafter, she signed a final receipt.

[ 74 Pa. Commw. Page 280]

On December 9, 1977, the claimant left her job, complaining of severe pain in her right heel. Later she petitioned the referee to set aside the final receipt, alleging that the pain in her heel resulted from her injury of May 19, 1977.

To overturn the denial of her petition, the claimant, as the moving party, has the burden to prove "by clear and convincing evidence that all disability attributable to the prior work-related injury had not in fact terminated when the final receipt was executed." Snyder v. Workmen's Compensation Appeal Board, 50 Pa. Commonwealth Ct. 227, 229, 412 A.2d 694, 695 (1980).

Here, the claimant asserts that the testimony of Dr. Steven Puglisi, who first saw the claimant on May 22, 1978, establishes that the claimant's heel injury was related to her injury incurred on May 19, 1977. Dr. Puglisi, who saw the claimant on one other occasion, stated in his testimony that:

It was my opinion that the spurs and calcification deposits [in the claimant's heel] were of longstanding at the time, more likely the spurs were not related to her original injury, but her symptoms appear to have been aggravated or irritated by the injuries she sustained, by her history.

The claimant contends that the referee relied on inadmissible evidence to support his finding that, "[c]laimant's pre-existing condition of bone spurs in her right heel was not aggravated by the injury of May 19, 1977 and any period of disability after June 20, 1977 [was] totally unrelated to the injury of May 19, 1977."*fn1 The claimant asserts that the evidence, a handwritten notation on a physician's notecard,

[ 74 Pa. Commw. Page 281]

    dated March 22, 1977 (before the accident), which read, "pain rt. heel Achilles tendon," was inadmissible because section 422 of The Pennsylvania Workmen's Compensation Act*fn2 provides that a physician's report cannot be admitted over a party's objection where the claim was not limited to twenty-five weeks or less. See Young v. Workmen's Compensation Appeal Board, 39 Pa. Commonwealth Ct. 265, 395 A.2d 317 (1979).*fn3

However, contrary to claimant's assertion that this evidence was the sole basis for the referee's decision, the board, in its opinion, indicated that the testimony of Dr. Pennell, the treating physician, supported the referee's finding. Although Dr. Pennell indicated that the claimant may be unable to work on her feet, he opined that the bone spurs and heel problem causing this disability were not related to the claimant's work injury.

The referee, of course, can accept or reject the testimony of any witness, and this acceptance of competent medical testimony of another doctor is not a capricious disregard of the rejected testimony. Nye v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 98, 401 A.2d 875 (1979). Thus, we cannot say that the referee capriciously disregarded

[ 74 Pa. Commw. Page 282]

    competent testimony*fn4 in concluding that the claimant failed to prove conclusively by clear and convincing evidence that all disability from her work-related injury had not disappeared at the time she executed the final receipt in question. Kerchner v. Materials Transport Service, Inc., 29 Pa. Commonwealth Ct. 589, 372 A.2d 51 (1977).*fn5

Accordingly, we affirm the decision of the board.

Order

Now, May 11, 1983, the order of the Workmen's Compensation Appeal Board, entered June 11, 1981, at Docket No. A-79923, is affirmed.

Disposition

Affirmed.


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