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QUEENELL MCCARTER v. WORKMEN'S COMPENSATION APPEAL BOARD (BOEING VERTOL COMPANY AND AETNA LIFE & CASUALTY CO.) (01/21/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 21, 1986.

QUEENELL MCCARTER, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BOEING VERTOL COMPANY AND AETNA LIFE & CASUALTY CO.), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Queenell McCarter v. Boeing Vertol Company, No. A-84674.

COUNSEL

Brian R. Steiner, Steiner and Segal, P.C., for petitioner.

Peter J. Weber, Rawle & Henderson, for respondent, Boeing Vertol Company.

Judges Craig, Barry and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 94 Pa. Commw. Page 262]

Claimant Queenell McCarter appeals from an affirmance by the Workmen's Compensation Appeal Board of a referee's decision to grant her employer's petition, under section 413 of The Pennsylvania Workmen's Compensation Act,*fn1 to terminate compensation being paid to the claimant for total disability.

Boeing Vertol employed Mrs. McCarter as a janitor. On February 8, 1980, Mrs. McCarter injured her right shoulder, right elbow, wrist and spine while hoisting a trash container in the course of her employment. She became totally disabled as a result of that injury and began receiving total disability benefits under a notice of compensation payable.

Based upon three examinations of Mrs. McCarter made at the request of Boeing's workmen's compensation insurance carrier during 1980, Dr. John Williams, a board-certified orthopedic surgeon, concluded that Mrs. McCarter had recovered sufficiently from her

[ 94 Pa. Commw. Page 263]

    work-related injuries*fn2 to return to work.*fn3 He also testified that, although he could make no objective findings to explain Mrs. McCarter's complaints of pain,*fn4 he believed that she could experience pain, but he had no way of evaluating the degree of pain.*fn5

[ 94 Pa. Commw. Page 264]

The referee found that "[Dr. Williams'] testimony is persuasive, credible, worthy of belief, and proves that the Claimant had recovered from her injury and is able to return to her previous occupation as of August 19, 1980." By order of September 21, 1982, the referee granted the employer's termination petition as of August 19, 1980, the date of Dr. Williams' third examination.

The board affirmed that decision and order, concluding that the referee had relied upon sufficient evidence to support a termination petition, and had properly accepted the testimony of one competent medical witness over that of another equally competent medical witness.

The issue we now consider is whether an acknowledgment by a medical expert that the claimant could suffer pain renders equivocal his opinion that the claimant has recovered from her injuries sufficiently to return to work. The related issue we address is whether the referee may resolve the claimant's uncontradicted complaints of pain as a matter of credibility.

Notwithstanding Dr. Williams' acknowledgment that Mrs. McCarter may in fact suffer from pain, his conclusion that she has recovered is supported by his unequivocal medical findings*fn6 and is not, as the claimant contends, ambiguous and contradictory.

[ 94 Pa. Commw. Page 265]

Citing Pennwalt, Stokes Division v. Workmen's Compensation Appeal Board, 44 Pa. Commonwealth Ct. 98, 403 A.2d 186 (1979), the claimant's brief urges that, when a physician is unable to produce objective findings concerning a claimed source of pain, there is no sufficient basis for a finding that the claimant's disability has ceased. In Pennwalt, the consequence of the inability of the employer's doctors to find any anatomical reason for the claimant's pain was that the referee and the board were not compelled to conclude that disability had diminished. However, because the board held that the employer failed to sustain its burden in that case, our scope of review there was limited to considering whether the board, in reaching its conclusion, had capriciously disregarded competent evidence.

In contrast, the board here held that Boeing did sustain its burden of proof. Accordingly, our scope of review as to factual matters is limited to considering whether the necessary findings of fact are supported by substantial evidence. Bell Telephone Co. of Pa. v. Workmen's Compensation Appeal Board, 87 Pa. Commonwealth Ct. 558, 487 A.2d 1053 (1985).

In view of Dr. Williams' testimony as to the range of motion and other physical tests performed, we conclude that the board's findings, that Mrs. McCarter had recovered from her injury and was able to return to her previous occupation as of August 19, 1980, are supported by substantial evidence.

Mrs. McCarter next contends that the board erred in finding that the testimony of her physician,*fn7 Dennis

[ 94 Pa. Commw. Page 266]

A. Boyle, M.D., was equivocal. However, we need not address the alleged unequivocality of Dr. Boyle's testimony. Even assuming that Dr. Boyle's testimony was unequivocal, this court has consistently held that the task of resolving conflicts in medical testimony lies solely with the referee, and where the referee's findings are supported by substantial evidence, the courts will affirm the decision of the board. U.S. Fidelity & Guaranty Co. v. Workmen's Compensation Appeal Board, 63 Pa. Commonwealth Ct. 191, 437 A.2d 1272 (1981).

Similarly, the referee, as the judge of credibility, was empowered either to disbelieve Mrs. McCarter's testimony regarding her pain or to believe it to be outweighed by the testimony of the employer's physician. Hayden v. Workmen's Compensation Appeal Board, 83 Pa. Commonwealth Ct. 451, 479 A.2d 631 (1984).

However, Mrs. McCarter contends that the referee erred in failing to state his reasons for his rejection of her uncontradicted testimony. Citing Frombach v. U.S. Steel Corp., 2 Pa. Commonwealth Ct. 556, 279 A.2d 779 (1971), Mrs. McCarter suggests that, although the factfinder is not obligated to accept even uncontradicted testimony, where uncontradicted testimony is rejected, this court must remand so that the factfinder can make a precise explanation of the reasons for such rejection, if those reasons were not set forth in the original decision.

Although the rule set forth in Frombach was correctly applied to the facts in that case,*fn8 a remand for

[ 94 Pa. Commw. Page 267]

    further findings of fact is unnecessary here. The referee specifically stated that Dr. Williams' testimony was "persuasive, credible, worthy of belief, and proves that the claimant had recovered from her injury. . . ." The referee additionally stated that he was not persuaded by the testimony of Dr. Boyle, the claimant's physician.

Thus, unlike the court in Frombach, we are able to review the referee's decision. We acknowledge that the referee may, within his discretion, evaluate the credibility of opposing witnesses and accept the testimony of one medical witness over another. Hulse v. Workmen's Compensation Appeal Board, 71 Pa. Commonwealth Ct. 28, 453 A.2d 1081 (1983).

Accordingly, because we conclude that the findings of fact made by the referee and affirmed by the board are supported by substantial evidence and that the referee has committed no errors of law, we affirm the decision of the Workmen's Compensation Appeal Board granting the employer's petition for termination as of August 19, 1980.

Order

Now, January 21, 1986, the order of the Workmen's Compensation Appeal Board, dated May 19, 1983, is affirmed.

Disposition

Affirmed.


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