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JOAN HAUSMAN SULE v. WORKMEN'S COMPENSATION APPEAL BOARD (KRAFT (11/22/88)

decided: November 22, 1988.

JOAN HAUSMAN SULE, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (KRAFT, INC. AND IDEAL MUTUAL INSURANCE COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Joan Hausman (Sule) v. Kraft, Inc., No. A-93315.

COUNSEL

Robert J. Magee, Worth Law Offices, P.C., for petitioner.

Wilbur C. Creveling, Creveling & Creveling, for respondent, Kraft, Incorporated.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 121 Pa. Commw. Page 243]

This is an appeal by Joan Hausman Sule (Claimant) from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision granting the petition of Kraft, Inc. (Employer) for termination of benefits.

On April 19, 1981 Claimant suffered an injury to her right shoulder and hand. She was paid benefits and there followed thereafter a series of supplemental agreements and final receipts. Immediately prior to the filing of Employer's instant petition seeking a termination/suspension or modification of benefits, Claimant was receiving benefits. The referee found that Employer's medical expert, Dr. Donio, testified that Claimant had

[ 121 Pa. Commw. Page 244]

"a totally ineffective right upper extremity known as a reflex sympathetic dystrophy." He further indicated that Dr. Donio testified that Claimant had no prognosis for recovery and that she had to live with a right arm which was nearly one hundred per cent disabled and useless.*fn1 Employer also presented as evidence a surveillance film of Claimant which revealed her shoveling dirt using both hands, carrying the shovel, removing her jacket and extending and flexing her arm, making motions with her right hand and raising her right hand and arm to head level and above, and scratching the top of her head. She performed these various activities without any apparent disability, functional impairment, pain, discomfort or abnormal configuration. Moreover, the film revealed that when Claimant realized she was being photographed she acted as though she was experiencing great pain in her left hand and arm.

Relying upon the surveillance film, the referee determined that Claimant's disability had terminated. He found Dr. Donio's testimony incredible because he had relied upon Claimant's subjective statements as to pain, which statements the referee determined to be incredible. Claimant appealed and the Board affirmed.

On appeal here, Claimant presents several arguments which we shall consider, keeping in mind that our scope of review is limited to determining whether there has been a constitutional violation or an error of law and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704.

Claimant contends that the referee committed error in relying solely upon the surveillance film to support his determination. It is true, as Claimant indicates, that ...


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