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NICHOLAS LYKOURAS v. WORKMEN'S COMPENSATION APPEAL BOARD (LYK-MATH INCORPORATED) (08/05/83)

decided: August 5, 1983.

NICHOLAS LYKOURAS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (LYK-MATH INCORPORATED), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Nicholas Lykouras v. Lyk-Math, Inc., No. A-81285.

COUNSEL

Harry A. Dorian, with him Barbara J. O'Hara, Rudolph, Seidner, Goldstein, Rochestie & Salmon, P.C., for petitioner.

Charles W. Croven, with him Paul R. Brady, III, Marshall, Dennehey, Warner, Coleman & Goggin, for respondent, Lyk-Math Incorporated.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 76 Pa. Commw. Page 201]

Nicholas Lykouras appeals a Workmen's Compensation Appeal Board order affirming a referee's denial of both total disability and specific loss-of-arm benefits. We affirm in part, reverse in part and remand.

Lykouras, a Lyk-Math, Inc., employee, sustained injuries when robbers entered the restaurant he managed and shot him. Metal pellets from the shotgun blast struck him in the left arm, neck, and chest. The wounds to his arm necessitated its amputation four inches below the elbow. He filed for benefits under The Pennsylvania Workmen's Compensation Act*fn1 (Act), alleging total disability from the resultant psychological trauma, and, alternatively, loss of his arm's use. The referee denied benefits for both total disability and loss of the entire arm. Instead, he awarded lesser benefits for specific loss of his forearm under Section 306(c) of the Act.*fn2

[ 76 Pa. Commw. Page 202]

Where the claimant has failed to sustain his burden of proof, and the Board has affirmed, our review is limited to ascertaining whether constitutional rights were violated, an error of law was committed, or there has been a capricious disregard of competent evidence. Killian v. Workmen's Compensation Appeal Board, 62 Pa. Commonwealth Ct. 29, 434 A.2d 906 (1981).

Lykouras first argues that the referee capriciously disregarded competent evidence in finding that he failed to prove total disability from resulting psychological trauma. We disagree.

Questions of credibility and the resolution of conflicting testimony are for the referee, not the reviewing court. Padilla v. Chain Bike Corp., 27 Pa. Commonwealth Ct. 190, 365 A.2d 903 (1976). Specifically, a referee's acceptance of one medical opinion and rejection of another is not a capricious disregard of competent evidence. McHale v. Workmen's Compensation Appeal Board, 56 Pa. Commonwealth Ct. 344, 425 A.2d 34 (1981).

The parties' respective psychiatric experts presented conflicting opinions as to whether Lykouras was totally disabled. The referee, in his discretion, resolved this conflict in Lyk-Math's favor. Thus, his rejection of Lykouras' evidence did not constitute a capricious disregard of it.

Lykouras next contends that the denial of benefits for loss of his arm's use was based on an error of law. The referee's ...


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