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RICHARD H. BOYCE v. WORKMEN'S COMPENSATION APPEAL BOARD (PENN STATE SERVICES) (08/27/85)

decided: August 27, 1985.

RICHARD H. BOYCE, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (PENN STATE SERVICES), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Richard H. Boyce v. Penn State Services, No. A-84521.

COUNSEL

Robert V. Campedel, Zemprelli, Clipper & Campedel, for petitioner.

John F. Will, Jr., Will & Keisling, for respondent, Penn State Services.

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

Author: Doyle

[ 91 Pa. Commw. Page 390]

Richard H. Boyce (Claimant) appeals from the Order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision denying

[ 91 Pa. Commw. Page 391]

Claimant benefits under The Pennsylvania Workmen's Compensation Act (Act). Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยงยง 1-1066.

Claimant was employed as a salesman for Penn State Services for a period of eight months. On March 31, 1981, Claimant made two calls at prospective customers' homes in order to sell them Employer's basement waterproofing service. On the way home from his final call Claimant began to feel nauseous and, after arriving at his home, suffered vomiting and diarrhea. Claimant was taken to a hospital where it was determined that he had suffered a myocardial infarction. Claimant remained disabled after treatment for his condition and filed for workmen's compensation benefits. The referee denied benefits, finding that the heart attack was not causally related to Claimant's employment. The referee's decision was affirmed by the Board, and this appeal followed.

In a workmen's compensation case the burden is upon the Claimant to establish that a disabling condition is work related. El-Ha'Kim v. Workmen's Compensation Appeal Board (Sharon Steel Corp.), 79 Pa. Commonwealth Ct. 191, 468 A.2d 1170 (1983). Where, as here, the party with the burden of proof did not prevail below, our scope of review is to determine whether an error of law was committed, whether the findings of fact are consistent with each other and with the conclusions of law, and whether the findings can be sustained without a capricious disregard of competent evidence. Interstate United Corp. v. Workmen's Compensation Appeal Board, 56 Pa. Commonwealth Ct. 385, 424 A.2d 1015 (1981).

Claimant argues that the referee disregarded the competent medical evidence of Dr. Patsy A. D'Onofrio, Claimant's treating physician, who testified that

[ 91 Pa. Commw. Page 392]

Claimant's heart attack was causally related to Claimant's stress at work. This testimony was contradicted by Employer's expert witness, Dr. Larry Hurwitz, who testified that there was no causal relationship between Claimant's heart attack and his work, and further, that had stress at work been a cause of the heart attack, it would have had to have been the result of an acute emotional and stressful situation. Claimant argues that the testimony of Dr. D'Onofrio should have been given more weight because, as his treating physician, she was more familiar with Claimant's condition. The weight given to medical testimony, however, is a matter to be resolved by the finder of fact. Sledge v. Workmen's Compensation Appeal Board ...


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