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MARTIN W. WINGERT v. WORKMEN'S COMPENSATION APPEAL BOARD (GETTY REFINING & MARKETING CO.) (12/08/83)

decided: December 8, 1983.

MARTIN W. WINGERT, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (GETTY REFINING & MARKETING CO.), RESPONDENTS



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

COUNSEL

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 ...


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