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KROGER COMPANY AND INSURANCE COMPANY NORTH AMERICA v. WORKMEN'S COMPENSATION APPEAL BOARD (NICOLA) (11/03/86)

decided: November 3, 1986.

THE KROGER COMPANY AND THE INSURANCE COMPANY OF NORTH AMERICA, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (NICOLA), (FIREMAN'S FUND INSURANCE COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Philomena C. Nicola v. The Kroger Company, No. A-87346.

COUNSEL

James R. Schmitt, Will, Keisling, Ganassi & McCloskey, for petitioners.

Michael D. Sherman, Fried, Kane, Walters & Zuschlag, for respondent, Fireman's Fund Insurance Company.

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

Author: Doyle

[ 101 Pa. Commw. Page 630]

The Insurance Company of North America (INA) petitions for review of an order of the Workmen's Compensation Appeal Board affirming a referee's determination that INA, as the workmen's compensation insurer of the Kroger Company (Employer) in 1978, is responsible for compensating a Kroger employee for a claim filed in 1981, rather than the Fireman's Fund Insurance Company (Fireman's Fund), Employer's insurer during 1981. We modify and affirm.

Essentially, this is a contest between two insurers. A full review of the facts, however, is necessary to understand the dispute. Philomena C. Nicola (Claimant) originally suffered a work-related back injury on May 10, 1978. She was paid workmen's compensation benefits by INA for her injury and returned to work on January 5, 1981 at her usual wage. Three days later, Claimant fell and broke her arm in a non-work-related accident. She returned to work again on April 13, 1981, but a few days after that, on April 15, 1981, Claimant fell at work and sustained a sprained wrist and twisted back.

On December 4, 1981, Claimant filed a claim petition for workmen's compensation benefits, alleging that her April 15, 1981 injury was a new injury in the form of an aggravation of her former work-related injury. Claimant later amended her petition to allege, alternatively, that her April 15, 1981 injury was a recurrence of the old injury. Claimant joined both Fireman's Fund and INA in her action, and INA on March 10, 1982, filed a petition to suspend her compensation based on Claimant's return to work on January 5, 1981.*fn1

[ 101 Pa. Commw. Page 631]

The various petitions were combined for several hearings before a referee. The referee determined, based on the deposition testimony of Dr. Stidard, Claimant's chiropractor, and Dr. Minde that the April 15, 1981 incident resulted in a continuance of her May 1978 injury rather than a new injury. Accordingly, the referee ordered INA, Employer's insurer in 1978, to pay compensation to Claimant from April 15, 1981 to April 12, 1982.*fn2 In addition, the referee ordered INA to pay Claimant's medical expenses and legal fees. On appeal to the Board, the referee's decision was affirmed.

INA raises several issues in its petition to this Court which we shall address seriatim. Initially, INA contends that the referee's determination that Claimant sustained a continuation of her original injury, resulting in INA being the responsible insurer, rather than a new injury, was not supported by substantial evidence.*fn3 The referee explicitly based his conclusion on the deposition testimony of Dr. Minde and Dr. Stidard. Dr. Minde gave

[ 101 Pa. Commw. Page 632]

    an unequivocal opinion that Claimant had a chronic recurring back problem and that all of her back problems stemmed from her 1978 injury. INA asserts that Dr. Minde's testimony is hearsay and incapable of supporting the referee's finding since it was based not on a physical examination of Claimant, but on a review of a transcript of admissible hearing testimony of Claimant, admissible deposition testimony of Dr. Stidard, and the admissible deposition testimony of another physician, Dr. Rosen. We disagree. An expert's medical opinion as to causation may be based upon facts gleaned by reading the record testimony rather than upon an actual physical examination of a claimant. Henderson v. Workmen's Compensation Appeal Board (County of Allegheny), 78 Pa. Commonwealth Ct. 243, 467 A.2d 410 (1983). Failure to conduct a physical examination does not go to a medical witness' competency; rather, it goes to his credibility. See Brodbeck v. Workmen's Compensation Appeal Board, 76 Pa. Commonwealth Ct. 372, 463 A.2d 1280 (1983). Furthermore, it is axiomatic that credibility determinations are the exclusive province of the referee. Mobley v. Workmen's Compensation Appeal Board (Handy and ...


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