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NANCY KOPE v. WORKMEN'S COMPENSATION APPEAL BOARD (BORG WARNER CORPORATION) (06/25/86)

decided: June 25, 1986.

NANCY KOPE, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BORG WARNER CORPORATION), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Nancy Kope v. Borg Warner, York Division, No. A-88770.

COUNSEL

Carl M. Mazzocone, Kates & Mazzocone, for petitioner.

Joseph W. Moyer, Stetler & Gribbin, for respondent, Borg Warner Corporation.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Rogers, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 98 Pa. Commw. Page 342]

Nancy Kope (claimant) appeals from a decision of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision denying her disability petition for a period from April 26, 1983, and thereafter. Claimant injured her lower back while in the employ of Borg Warner Corporation (respondent) and was awarded disability from the date of injury, December 1, 1982, until

[ 98 Pa. Commw. Page 343]

April 26, 1983. The referee found that claimant was able to return to the job as a radial drill press operator as of the latter date.

The burden of establishing the right to compensation and all of the elements necessary to support an award is on the claimant, and where the claimant fails to prevail, the Board's findings of fact must be sustained unless they capriciously disregard competent evidence or unless they are inconsistent with each other or with either the Board's conclusions of law or its order. Arena v. Packaging Systems Corp., 510 Pa. 34, 507 A.2d 18 (1986).

On appeal, claimant argues first that the referee's determination that she was able to return to her job as of April 26, 1983, constituted a capricious disregard of record evidence. After careful review, we must disagree with this contention. At the hearing, claimant and a co-worker, Mr. Shane, testified as to the circumstances of the date of injury. Claimant testified that she had leg pains and difficulty in driving and sleeping. Dr. Dietrich, the claimant's family physician, Dr. Mitrick, an orthopedic surgeon, and Dr. Brennan, a neurologist, also testified on claimant's behalf.

Dr. Steinman, who specializes in physical medicine and rehabilitation, testified for respondent. In addition, respondent presented testimony of a Mr. Gochenour, a private investigator, who had performed surveillance of claimant at respondent's request on April 26, 27, and 28, 1983; August 14 and 15, 1983; and June 8 and 11, 1984. Mr. Gochenour presented slides of claimant indulging in relatively normal everyday activities, such as hanging laundry, going to the beauty parlour, going to the doctor's, going to the store, washing her car, working on a charcoal grille, sweeping her front porch, hosing down her front porch and windows, and so forth. Mr. Gochenour then presented a video tape which similarly documented claimant's activities.

[ 98 Pa. Commw. Page 344]

Taken together, Dr. Brennan's testimony and the photographic evidence presented by respondent's investigator suffice as substantial evidence. In choosing to believe respondent's witnesses, the referee did not capriciously disregard competent evidence but exercised his credibility function. The referee specifically found the claimant was not credible as a witness, and credibility issues are for the referee to resolve, not this Court. Tarr v. ...


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