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BENJAMIN H. FRYE v. WORKMEN'S COMPENSATION APPEAL BOARD (LAFFERTY TRUCKING COMPANY) (11/18/83)

decided: November 18, 1983.

BENJAMIN H. FRYE, JR., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (LAFFERTY TRUCKING COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Benjamin H. Frye, Jr. v. Lafferty Trucking Company, No. A-79173.

COUNSEL

Frederick B. Gieg, Jr., Gieg & Gieg, for petitioner.

Alan R. Krier, Jubelirer, Carothers, Krier, Halpern & Smith, for respondents.

Judges Williams, Jr., Barry and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 78 Pa. Commw. Page 428]

Benjamin H. Frye, Jr. (claimant) appeals here an order of Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision to grant the termination petition of the Lafferty Trucking Company (employer).

The claimant, who has a history of back problems, was injured in the course of his employment and received total disability payments. After hearings before the referee, payments were terminated based on the deposition testimony of the employer's physician that all work-related disability had ceased. The Board affirmed and the claimant filed the instant appeal.

In a termination proceeding, the employer has the burden of proving that all work-related disability had ceased. Walther v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 122, 388 A.2d 1166 (1978). And where, as here, the party with the burden of proof has prevailed before the referee, and the Board took no additional evidence, this Court's scope of review is to determine whether or not constitutional rights were violated, an error of law was committed, or a necessary finding of fact was unsupported by substantial evidence. Lookout Volunteer Fire Co. v. Workmen's Compensation Appeal Board, 53 Pa. Commonwealth Ct. 528, 418 A.2d 802 (1980).

The claimant argues first that the termination petition should not have been granted because the employer did not meet his burden of proof. He relies on

[ 78 Pa. Commw. Page 429]

    the deposition of his physician, who opined that the claimant's work-related disability had not ceased. The employer's physician disagreed, however, and stated that his examination of the claimant indicated that all disability related to the workplace had ceased. The referee, who was free to "accept or reject the testimony of any witness, including 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) chose to accept the testimony of the employer's witness. And finding that testimony to be substantial evidence, it is not the function of this Court to decide questions of evidentiary weight and credibility. Bethlehem Steel Corp. v. Workmen's Compensation Appeal Board (Lombardi), 70 Pa. Commonwealth Ct. 392, 453 A.2d 370 (1982).

The claimant next argues that he was promised by a representative of the employer's insurance carrier that his benefits would not be discontinued until he had been rehabilitated and could accept employment in another line of work. He states that he then enrolled at the Pennsylvania State University in an engineering program, relying on these statements and believing that his compensation would not be terminated. The referee found, however, that the claimant resigned from his position with the employer, and, while he did not state why the claimant resigned, we do not believe that it was necessary for him to do so. There was no corroboration of the claimant's self-serving, hearsay testimony relating to the alleged agreement with the ...


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