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decided: December 8, 1983.


Appeal from the Order of the Workmen's Compensation Appeal Board in case of Martin W. Wingert, No. A-80319.


Michael P. McIntyre, for petitioner.

Edward H. Feege, Hayes and Feege, P.C., for respondent, Getty Refining & Marketing Co.

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

Author: Williams

[ 78 Pa. Commw. Page 641]

Martin W. Wingert (claimant)*fn1 appeals here from the Workmen's Compensation Appeal Board's (WCAB) affirmance of a referee's decision effectively denying compensation to the claimant.

The claimant was employed by the Getty Refining & Marketing Co. (employer) as a yardman at its Macungie, Pennsylvania, place of business, a position which occasionally required strenuous physical labor. On January 13, 1976, in the course of his yardman duties, the claimant fell on ice and hit his back. Experiencing some back discomfort, he notified his supervisor of the accident and left work. The claimant was subsequently assigned light duty work.*fn2

[ 78 Pa. Commw. Page 642]

After the claimant was examined and treated by several doctors, he was referred to Dr. Sussman, a board certified orthopedic surgeon. After the claimant underwent a myelogram, Dr. Sussman diagnosed his condition as a degenerative lumbar disc with nerve root pressure which resulted from his fall at work.

The claimant was also examined by Dr. White, a board certified orthopedic surgeon on July 22, 1977, May 18, 1978 and March 23, 1979. Dr. White also examined the X-ray films of the claimant's myelogram and rendered the opinion that there was no objective evidence of any physical abnormality which was causing the pain of which the claimant complained. Furthermore, in Dr. White's opinion the claimant was capable of performing the duties of a yardman as of the date of his first examination of the claimant, July 22, 1977 and thereafter.

In taking this appeal, the claimant raises two issues. Did the WCAB and the referee err in failing to appoint an impartial physician to examine the claimant?*fn3 Did the WCAB err in not finding that the referee

[ 78 Pa. Commw. Page 643]

    had capriciously disregarded competent medical testimony?

While recognizing that the WCAB and the referee have broad discretionary power to appoint an impartial physician,*fn4 nevertheless, the claimant contends that the WCAB and the referee abused that discretionary power. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence of record, discretion is abused. Mielcuszny v. Rosol, 317 Pa. 91, 176 A. 236 (1934); Forthuber v. City of Pittsburgh, 67 Pa. Commonwealth Ct. 627, 447 A.2d 1106 (1982). A careful reading of the extensive record in this case reveals no such abuse.

The referee, here, was confronted with two divergent medical opinions, each rendered by a board certified orthopedic surgeon. In performing his functions as fact finder, the referee accepted the opinion of Dr. White over that of Dr. Sussman. Under such circumstances, the referee's choice to base his decision on the competent testimony of one of the parties' medical experts and not to appoint an impartial physician does not constitute reversible error. Workmen's Compensation Appeal Board v. Jones & Laughlin Steel Corporation, 22 Pa. Commonwealth Ct. 469, 349 A.2d 793 (1975). Moreover, while Section 420 clearly states that appointment of an impartial physician is discretionary with the WCAB, this Court has held that Section 420 provides no special exceptions to the WCAB's scope of review, and hence only applies where the WCAB may make independent factual findings, i.e., only where the referee's findings are not supported by

[ 78 Pa. Commw. Page 644]

    competent evidence.*fn5 Only under such circumstances is it proper for the WCAB to appoint an impartial physician. Forbes Pavilion Nursing Home, Inc. v. Workmen's Compensation Appeal Board, 18 Pa. Commonwealth Ct. 352, 336 A.2d 440 (1975). Forasmuch as the referee's decision was based on such competent evidence, it follows that the WCAB did not err in not appointing an impartial physician.*fn6

[ 78 Pa. Commw. Page 645]

The second issue raised by the claimant is whether the referee and the WCAB capriciously disregarded competent medical evidence. To constitute capricious disregard there must be a willful, deliberate disbelief of an apparently trustworthy witness, whose testimony one of ordinary intelligence could not possibly challenge. Lamanna v. Workmen's Compensation Appeal Board, 62 Pa. Commonwealth Ct. 535, 437 A.2d 465 (1981). There is no such capricious disregard here. Dr. White's testimony constitutes evidence which could lead a reasonable person to doubt the contrary testimony offered by the claimant's physician. The referee's acceptance of the medical opinion of one physician over that of another does not constitute capricious disregard where, as here, the referee had relevant evidence to support his conclusions.*fn7 Wilson v. Page 645} International Peripheral Systems, Inc., 58 Pa. Commonwealth Ct. 38, 427 A.2d 293 (1981). Consequently, the referee's resolution of the credibility of the medical witnesses and the weight to be accorded to the testimony of the various witnesses could not be disturbed by the WCAB, nor can it be disturbed by this Court.


And Now, this 8th day of December, 1983, the decision of the Workmen's Compensation Appeal Board, Docket No. A-80319 dated January 14, 1982, is affirmed.



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