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RICHARD D'AGOSTINO v. WORKMEN'S COMPENSATION APPEAL BOARD (CHARLES JACQUIN (09/04/87)

decided: September 4, 1987.

RICHARD D'AGOSTINO, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CHARLES JACQUIN, ET CIE, INC. AND AETNA LIFE AND CASUALTY COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Richard D'Agostino v. Charles Jacquin et Cie, Inc., No. A-90834.

COUNSEL

Morris D. Bernstein, Galfand, Berger, Senesky, Lurie & March, for petitioner.

Peter J. Weber, Rawle & Henderson, for respondent.

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

Author: Narick

[ 109 Pa. Commw. Page 163]

Richard D'Agostino (Claimant) has appealed from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision to grant Charles Jacquin et Cie, Inc.'s (Employer's) petition to terminate benefits paid to Claimant pursuant to the terms of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1603.

[ 109 Pa. Commw. Page 164]

Claimant sustained a work-related injury on March 18, 1982 which was diagnosed as cervical strain/chest pain. He received total disability benefits under a Notice of Compensation Payable. On May 2, 1983, Dr. Edgar L. Pennell executed an affidavit of recovery, stating that he had examined Claimant on April 19, 1983, and found him to be fully recovered from the March 18, 1982 injury. Employer then filed a petition to terminate workmen's compensation benefits.

Testimony was taken before Referee Michael J. Stief, and each party submitted medical testimony in the form of a physician's deposition. Upon Referee Stief's retirement, the case was reassigned to Referee George W. Nickel, who decided the case on the record. He granted the petition and was affirmed by the Board, giving rise to the instant appeal.

Claimant's counsel argues that he should have received notice that a second referee, specifically, Referee Nickel, was to decide the case. Had he known of the assignment, he would have requested recusal on the grounds that he and Mr. Nickel had a long-standing relationship as adversaries. However, because this issue was not raised in his appeal to the Board, we decline to consider it. See e.g., Hugh H. Eby Co. v. Workmen's Compensation Appeal Board, 47 Pa. Commonwealth Ct. 135, 407 A.2d 148 (1979). (In his appeal to the Board, Claimant argued that the second referee's findings should not be entitled to deference on appeal. We note that in light of our decision in Arena v. Workmen's Compensation Appeal Board (Packaging Systems Corp.), 85 Pa. Commonwealth Ct. 553, 483 A.2d 577 (1984), rev'd on other grounds, 510 Pa. 34, 507 A.2d 18 (1986), that argument is without merit).

[ 109 Pa. Commw. Page 165]

Claimant raises two other closely related issues: that the Employer did not meet its burden of proof on the termination petition, see e.g., Mobley v. Workmen's Page 165} Compensation Appeal Board (Handy and Harman Tube Co.), 79 Pa. Commonwealth Ct. 154, 468 A.2d 897 (1983), and that the referee disregarded competent evidence which was uncontradicted in granting the petition. Our scope of review, of course, is limited to a determination of whether constitutional rights have been violated, an error of law committed, or whether necessary findings of fact are supported by substantial competent evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

The referee accepted the testimony of Employer's medical expert, Dr. Edgar Pennell, over that of Claimant's treating physician, Dr. Eugene Vogin, expressly stating in his findings that he found Dr. Pennell's testimony to be unequivocal and credible. It is axiomatic that the referee is the ultimate fact-finder, and that it is his province to resolve questions of credibility and conflicts in the evidence. ...


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