New Enterprise Stone & Lime Co. v. Commonwealth

400 A.2d 936, 42 Pa. Commw. 375, 1979 Pa. Commw. LEXIS 1525

• Court: Commonwealth Court of Pennsylvania
• Decided: May 2, 1979
• Docket: Appeal, No. 204 C.D. 1978
• Status: Published

Opinions

Opinion by

Judge Mencer,

On April 11, 1969, Wallace T. Harclerode (claimant), during the course of his employment, was in a truck accident, as a result of which he sustained a cerebral concussion and a contusion of his back. Workmen’s compensation payments were made to the claimant pursuant to a compensation agreement from April 12, 1969 to May 12, 1969, when claimant returned to work.

On October 12, 1971, the claimant filed a reinstatement petition, alleging that he was unable to perform any strenuous type of physical labor. Hearings were held before a referee at which Dr. John Deffibaugh testified for the claimant and Dr. S. Victor King testified for the employer. Following the hearings, the referee dismissed the petition for reinstatement after finding that “[a]ny loss of earnings and any inability to work suffered by the claimant after May 12, 1969 [was] not the result of his accidental injury of April 11,1969.”

On claimant’s appeal to the Workmen’s Compensation Appeal Board (Board), the first referee’s decision was set aside and the case was remanded for further medical testimony by an appointed impartial expert. Based on the testimony of the impartial expert, a second referee ruled that claimant was entitled to compensation for temporary total disability beginning May 27, 1971. The decision of the second referee was affirmed by the Board and the present appeal followed. We reverse.

This Court, in Forbes Pavilion Nursing Home, Inc. v. Workmen’s Compensation Appeal Board, 18 Pa. Commonwealth Ct. 352, 336 A.2d 440 (1975), interpreted the 1972 amendments to Section 423 of The Pennsylvania Workmen’s Compensation Act¹ as imposing upon the Board stricter limitations on its former wide capacity to remand cases to referees for further taking of evidence. We held that the new provisions empowered the Board to remand only when “the referee’s findings are not supported by competent evidence” or when “the referee [has] failed to make a finding on a crucial issue necessary for the proper application of the law.” Id. at 358, 336 A.2d at 445. In this case, the medical testimony of Dr. King for the employer constitutes competent and comprehensive evidence upon which the first referee properly based his finding.² Nor did the first referee fail to make a finding on any crucial issue.

Therefore, by the Forbes rule the Board erroneously remanded³ and we are compelled to reverse.

Order

And Now, this 2nd day of May, 1979, the order of the Workmen’s Compensation Appeal Board, under date of December 9, 1977, is hereby reversed, and Reinstatement Petition No. 181-14-6960 is hereby dismissed.

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§853-854.

2 Dr. King testified on the crucial issue as follows :

X-ray examination on Mr. Harclerode with x-rays taken on 9-7-71 at Mercy Hospital including thoracic spine, cervical spine, reveal osteoarthritic changes throughout with accentuation of the osteoarthritic changes at the level of C-6 and 7 and T-5 and 6 and when compared with previous films taken in October and March of 1970 at Mercy Hospital there is no significant change in the appearance of the vertebra and the arthritic changes.

I feel that Mr. Harclerode has some osteoarthritic changes involving the dorsal spine which are at the present time symptomatic. There has not been any significant change in the amount of arthritic changes noted on the x-rays from October of 1969 to the present time and it is felt that this arthritis is manifested by some pain and discomfort between the shoulder with mild restriction of motion as listed above and it is not possible to connect these chronic arthritic changes with the accident described by Mr. Harclerode in April of 1969 and it is felt that these arthritic changes are commensurate with the patient’s age.

Q. Do you have an opinion as to whether or not the condition that the claimant suffered to his back in April of 1969 caused that arthritis? A. I don’t feel that there is any connection. He has chronic arthritic changes. It is not possible to connect these chronic arthritic changes with the accident described by Mr. Harclerode. Q. Doctor, has there, in fact, been any significant change from the 1969 films through the 1971 x-ray films? A. No.

3 The Board explained its remand order for the appointment of an impartial expert to be the result of its belief that “the evidence of both physicians [before the first referee] is open to challenge.” This is simply a matter of weight to be given to the testimony and not a matter of competence. In fact, the Board in its opinion stated: “Dr. Victor King, an orthopedic surgeon on whose testimony the [employer] relies, expressed his views with sufficient certainty, to be sure, and his competence is not questioned.”

The Board further explained its ruling in these words :

[The Board] was simply troubled by the time gaps, the shaky recollections, and the reluctance of the [employer] to concede the competence of Dr. Deffibaugh, a licensed chiropractor. The basis of [our] remand order was doubt that the record contained the ‘sufficient competent evidence’ required by Section 422 of the Act.

We have no such doubt and conclude that tbe items of concern to tbe Board go to tbe weight of the evidence, a resolution of the conflicts in tbe testimony of expert witnesses, and a determination of tbe credibility of witnesses, all matters for tbe referee to pass upon. Workmen’s Compensation Appeal Board v. Phillips, 29 Pa. Commonwealth Ct. 613, 372 A.2d 63 (1977).