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KATHERINE BORKOWSKI v. WORKMEN'S COMPENSATION APPEAL BOARD (JOHN F. KENNEDY MEDICAL CENTER) (05/13/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 13, 1983.

KATHERINE BORKOWSKI, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (JOHN F. KENNEDY MEDICAL CENTER), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Katherine Borkowski v. John F. Kennedy Medical Center, No. A-81663.

COUNSEL

Richard P. Abraham, with him Jane Combrinck-Graham, Abraham, Pressman & Bauer, P.C., for petitioner.

Martin J. Fallon, Jr., Swartz, Campbell & Detweiler, for respondent, John F. Kennedy Medical Center and Argonaut Insurance Companies.

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

Author: Macphail

[ 74 Pa. Commw. Page 311]

Katherine Borkowski (Claimant) appeals from a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's dismissal of her claim petition.

On January 10, 1974, Claimant slipped and fell backwards on a patch of ice on a sidewalk which led from the parking lot to the entrance of her place of employment, John F. Kennedy Medical Center (Employer or hospital). Claimant got up on her own and continued into work. Claimant was examined that day at the hospital dispensary as a result of her complaints of pain in the coccygeal area. Claimant had experienced such pain occasionally since a fall in 1971.*fn1 Claimant continued in her regular employment for approximately seventeen months after the January 10, 1974 fall without loss of time attributable to any lower back problems. Claimant was admitted to Women's Medical College Hospital in May of 1975, where surgery was performed for the removal of a small bony growth from the area of the coccyx. She continued to experience pain and so surgery was again performed in October of 1977, where it was discovered that a nerve was entrapped by an outgrowth of bone in the lower back. This condition*fn2 was repaired at that time. A claim petition was filed in this matter on January 9, 1976.

At the hearings held on the claim petition, Claimant and Employer each presented medical testimony.*fn3

[ 74 Pa. Commw. Page 312]

This testimony was conflicting, with Claimant's physician, Dr. Sbarbaro, testifying that Claimant's medical problems were causally related to the January 10, 1974 fall, in that the fall aggravated pre-existing back problems, while Employer's physician, Dr. Simon, testified that in his opinion Claimant's medical problems were not caused by the fall, but rather were congenital*fn4 in nature. The referee chose to believe Dr. Simon and thus held that Claimant had failed to establish that her back problems were causally related to the January 10, 1974 fall.

Claimant has preserved two issues for our review. First of all, Claimant contends that the referee erred in accepting the testimony of Employer's medical expert since that witness only testified as to whether the fall caused her disability, not as to whether the fall could have aggravated the pre-existing condition. Secondly, Claimant contends that the referee, in finding of fact number 10,*fn5 erred in finding that Claimant's physician's diagnosis was made based upon several erroneous assumptions.

Where the party with the burden of proof, here the Claimant, has failed to carry that burden, our scope of review is limited to determining whether the findings of fact are consistent with each other and with the conclusions of law and whether those findings

[ 74 Pa. Commw. Page 313]

    can be sustained without a capricious disregard of competent evidence, which is the willful, deliberate disbelief of an apparently trustworthy witness whose testimony one could not possibly challenge. E.g., Stewart v. Workmen's Compensation Appeal Board, 64 Pa. Commonwealth Ct. 266, 439 A.2d 1304 (1982). Questions of credibility, the resolution of conflicting testimony and the weight to be given the evidence are all matters to be resolved by the fact-finder -- here the referee -- and not this Court. Id. The referee's decision to accept the testimony of one competent medical witness over another will not be disturbed on appeal, e.g. Killian v. Workmen's Compensation Board of Review, 62 Pa. Commonwealth Ct. 29, 38, 434 A.2d 906, 910 (1981); furthermore, it is within the province of the fact-finder to accept or reject the testimony of any witness, in whole or in part. Id.

After reviewing this case within the limiting standards outlined above, we are constrained to hold that the referee's decision, as affirmed by the Board, must be affirmed. This appeal presents nothing more than Claimant's disagreement with the referee's choice between conflicting testimony. Regarding the first issue presented by Claimant, Dr. Simon testified that Claimant's medical problems were "not related at all" to the fall and the referee clearly could have inferred from this that Dr. Simon believed the medical problems were not aggravated by the fall.*fn6

[ 74 Pa. Commw. Page 314]

As for Claimant's second issue, Dr. Sbarbaro clearly did testify that his diagnosis was based on certain assumptions found to be incorrect. While the doctor did also testify that his diagnosis would not have been changed by corrected assumptions, we can find no error in the referee's decision to give less credit to this physician's testimony based upon the erroneous assumptions underlying the initial diagnosis of causation. The referee's choice of testimony to accept can in no way be characterized as capricious and therefore must be affirmed.

[ 74 Pa. Commw. Page 315]

Order

The order of the Workmen's Compensation Appeal Board, No. A-81663, dated March 25, 1982, is hereby affirmed.

Disposition

Affirmed.


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