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decided: December 29, 1988.


Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Russell W. Seilhamer v. Berwind Railway Service Company, No. A-92085.


Stephen D. Wicks, for petitioner.

James S. Routch, Evey, Routch, Black, Dorezas, Magee & Andrews, for respondent, Berwind Railway Service Company.

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

Author: Mcginley

[ 122 Pa. Commw. Page 411]

Russell W. Seilhamer (Seilhamer) appeals from a decision of the Workmen's Compensation Appeal Board (Board) affirming a decision of the Referee to suspend Workmen's Compensation Benefits pursuant to Section 413 of The Pennsylvania Workmen's Compensation Act (Act),*fn1 77 P.S. ยง 772. We affirm.

Seilhamer was employed by Berwind Railway Service Company (Employer) as a car repairman on May 11, 1982, when he suffered a work-related fracture of

[ 122 Pa. Commw. Page 412]

    the right hand. As a result of the injury, Seilhamer began receiving benefits pursuant to a Notice of Compensation Payable. On March 17, 1983, the Employer filed a Petition for Termination. The Referee considered the Petition as a Petition for Suspension and suspended Seilhamer's benefits. The Board affirmed the Referee's decision and Seilhamer brought the instant appeal.

Where there has been evidence presented by both parties our scope of review is limited to a determination of whether there has been a constitutional violation, an error of law or whether the findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987).

Seilhamer contends that the Board erred in concluding that the Referee's decision that he could return to his previous position was based on substantial evidence.

In a proceeding to suspend or terminate workmen's compensation benefits, an employer has the burden of showing that the employee's disability has ended or been reduced and that the employee is capable of returning to work. Carmen Paliotta General Construction v. Workmen's Compensation Appeal Board (Tribuzio), 107 Pa. Commonwealth Ct. 143, 528 A.2d 274 (1987). Thus, the issue is whether the testimony of the Employer's medical witnesses was unequivocal and constitutes substantial evidence to support the Referee's determination that Seilhamer was able to return to work as of March 10, 1983.

The Referee's Finding No. 12 states that:

After reviewing all of the evidence of record, the Referee is persuaded by and adopts portions of the credible medical testimony of Dr. Opida and Dr. Osgood and finds as a fact that as of March 10, 1983, the claimant was able to return to his former work without restriction while suffering

[ 122 Pa. Commw. Page 413]

    an undetermined amount of residual disability causally related to his work-related injury of May 11, 1982.

The Referee accepted and relied upon portions of the testimony of the Employer's medical witnesses. Such credibility determinations are within the province of the Referee. Id. The record reveals that the testimony of these two doctors does support the Referee's finding.

Ciceron L. Opida, M.D. testified by way of deposition that he had examined Seilhamer on February 24, 1983,*fn2 at which time he found no clinical findings which would substantiate a finding of sympathetic dystrophy.*fn3 Despite this testimony, Seilhamer argues that Dr. Opida's testimony does not support the Referee's finding because Dr. Opida's conclusion was invalidated under cross-examination. Seilhamer contends that Dr. Opida admitted that positive thermographic and radiological

[ 122 Pa. Commw. Page 414]

    studies would confirm the existence of reflex sympathetic dystrophy, and he notes that he introduced into evidence the results of such tests. A review of the testimony reveals that Dr. Opida considered such evidence when reaching his medical conclusion, and that he discounted its value.*fn4 The testimony of Carroll P. Osgood, M.D., also supports the conclusion that although Seilhamer's medical disability may not have permanently

[ 122 Pa. Commw. Page 415]

    ceased, it did not prevent him from returning to his employment at that time.*fn5

Accordingly, the decision of the Board is affirmed.


And Now, this 29th day of December, 1988, the decision of the Workmen's Compensation Appeal Board in the above-captioned matter is affirmed.



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