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JOHN E. DAVIS v. WORKMEN'S COMPENSATION APPEAL BOARD (UNITED PARCEL SERVICE) (12/05/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 5, 1983.

JOHN E. DAVIS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (UNITED PARCEL SERVICE), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of John E. Davis v. United Parcel Service, No. A-83538.

COUNSEL

B. Mark Chernoff, Lebovitz & Lebovitz, P.A., for petitioner.

James A. Bosakowski, Hutton, McCrory, Bashline & Baginski, for respondent, United Parcel Service.

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

Author: Macphail

[ 78 Pa. Commw. Page 618]

John E. Davis (Claimant) appeals the decision of the Workmen's Compensation Appeal Board (Board), which affirmed the referee's termination of compensation benefits to Claimant.

Claimant was a truck driver for United Parcel Service (Employer). On February 20, 1980, in the course of his employment, Claimant was injured and sustained a cerebral concussion and laceration of the right shoulder. Claimant received compensation benefits from March 4, 1980 through May 19, 1980. At the request of Employer, Claimant was examined by Dr. Charles M. McCool on May 19, 1980 and April 13, 1981, who testified that Claimant had fully recovered from the work related injuries. Based on Dr. McCool's testimony, the referee found that all of Claimant's work related disability had ended and terminated Claimant's benefits as of May 20, 1980. The Board affirmed that determination.

In a termination proceeding, the employer bears the burden of proving a lack of causal connection between the Claimant's continuing disability and his compensable injury. George v. Workmen's Compensation Appeal Board, 63 Pa. Commonwealth Ct. 23, 27, 437 A.2d 521, 523 (1981). Here the referee found that Employer met this burden when Dr. McCool testified that Claimant had recovered from his work related injuries and that these injuries were unrelated to Claimant's long standing back condition.*fn1

[ 78 Pa. Commw. Page 619]

Claimant alleges that the referee ignored the medical reports and medical testimony that Claimant's disability was due to a cerebral and labyrinthine concussion with cervical sprain,*fn2 which they testified were related to Claimant's compensable injury of February 20, 1980. This Court on many occasions has stated that the referee, as the factfinder, resolves the question of credibility and may accept or reject the testimony of any witness.*fn3 Here the referee found Dr. McCool's testimony was more credible than the medical evidence to the contrary and, therefore, we will not disturb this finding by the referee.

[ 78 Pa. Commw. Page 620]

When the party with the burden of proof prevails before the referee, our review is limited to determining whether constitutional rights were violated, whether an error of law was committed or whether the necessary findings of fact were supported by substantial evidence. Shepherd v. Workmen's Compensation Appeal Board, 66 Pa. Commonwealth Ct. 101, 103, 443 A.2d 862, 863 (1982). Our review of the record indicates that there was substantial evidence for the referee to terminate Claimant's benefits. Dr. McCool is a specialist in internal medicine and his testimony was substantial and sufficient to support the referee's finding that Claimant's work related disability had ended.

The decision of the Board is affirmed.

Order

The decision of the Workmen's Compensation Appeal Board, dated October 7, 1982, is affirmed.

Disposition

Affirmed.


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