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GEORGE HARTZELL v. WORKMEN'S COMPENSATION APPEAL BOARD (BOWEN MCLAUGHLIN (10/01/86)

decided: October 1, 1986.

GEORGE HARTZELL, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BOWEN MCLAUGHLIN, YORK DIV.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of George Hartzell v. Bowen McLaughlin, York Div., No. A-88556.

COUNSEL

Donald L. Reihart, Laucks & Monroe, for petitioner.

W. Jeffrey Sidebottom, Barley, Snyder, Cooper & Barber, for respondents.

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

Author: Craig

[ 101 Pa. Commw. Page 138]

Does an expert medical opinion that the claimant has fully recovered and may return to his pre-injury employment constitute substantial competent evidence to uphold the referee's termination of benefits where the physician, based upon a physical examination of the

[ 101 Pa. Commw. Page 139]

    claimant, first opined that the disability continued, but changed his diagnosis after viewing a surveillance videotape of the claimant moving about apparently without limitation?

Claimant George Hartzell suffered a back injury on January 30, 1979, in the course of his employment at Bowen McLaughlin, York Division (BMY). He began receiving workmen's compensation benefits for total disability. On September 8, 1983, BMY filed a petition to terminate the claimant's benefits, alleging that he had fully recovered from his work-related injury as of August 26, 1983.

During hearings before the referee, BMY introduced a videotape made by an investigator hired by BMY during a period of five days in August and October of 1983. The videotape showed the claimant engaging in various physical activities. The referee found that "[the videotape] showed no apparent disability, and Claimant had no problem bending, squatting, walking, crossing his legs, or negotiating steps whatsoever." Based upon that videotape, which he accepted over the claimant's complaints of pain, and upon the expert testimony of three physicians who examined the claimant and viewed the videotape, the referee granted BMY's petition to terminate benefits.*fn1 By order dated October 4, 1985, the Workmen's Compensation Appeal Board affirmed that decision.

[ 101 Pa. Commw. Page 140]

The claimant primarily argues that the referee erred by basing his decision upon the videotape and upon medical testimony which he contends was improperly dependent upon the videotape.

As the claimant correctly points out, films alone are inadequate to sustain the evidentiary burden of showing that a claimant's disability has been reduced. DeBattiste v. Anthony Laudadio & Son, 167 Pa. Superior Ct. 38, 74 A.2d 784 (1950). However, properly authenticated and identified motion pictures are admissible evidence for the ...


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