Chavis v. Workmen's Compensation Appeal Board

SILVESTRI, Senior Judge,

concurring and dissenting. I concur with the majority’s disposition of the first issue and conclusion that Claimant had constructive notice of Employer’s job referrals. However, I must dissent as to the ultimate reversal of the Board and conclusion that, upon review, Claimant “could not perform the duties” of the proffered positions.

The majority relies upon language in Kachinski to the effect that an employer must produce “medical evidence describing the claimant’s capability” and “vocational evidence classifying the job” and then underscores that “[from] such evidence it will be up to the referee to determine whether the claimant can perform the job in question____” While the majority emphasizes that the determination is “up to the referee,” they then usurp this power by independently reviewing the evidence and concluding to the contrary.

This Court has consistently maintained that the role of fact-finder is that of the referee and as such, he has *453exclusive province over questions of credibility and evidentiary weight. Edwards v. Workmen’s Compensation Appeal Board (Hunlock Township), 137 Pa.Commonwealth Ct. 70, 585 A.2d 56 (1990); Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Skirpan), 132 Pa.Commonwealth Ct. 277, 572 A.2d 838 (1990); Smith v. Workmen’s Compensation Appeal Board (Westinghouse Electric Corp.), 90 Pa.Commonwealth Ct. 246, 494 A.2d 877 (1985). The referee may accept or reject the testimony of any witness, including a medical witness, in whole or in part. Cavallo v. Workmen’s Compensation Appeal Board, 132 Pa.Commonwealth Ct. 22, 571 A.2d 1096 (1990); Hess Brothers v. Workmen’s Compensation Appeal Board (Gomick), 128 Pa.Commonwealth Ct. 240, 563 A.2d 236 (1989); Mrs. Smith’s Frozen Foods Co. v. Workmen’s Compensation Appeal Board (Clouser), 114 Pa.Commonwealth Ct. 382, 539 A.2d 11 (1988); Wilson v. International Peripheral Systems, Inc., 58 Pa.Commonwealth Ct. 38, 427 A.2d 293 (1981).

In the instant case, the referee found the following:

6. In support of its Petition for Modification, the employer offered the testimony of Ronald L. Zimmerman, M.D., who specializes in physical medicine and rehabilitation. Dr. Zimmerman examined the claimant on January 22, 1986____
7. Dr. Zimmerman opined that the claimant’s symptoms of [right shoulder] tenderness may effect his ability to drive a bus, ...
8. The employer offered evidence of seven lighter-duty jobs, for which the claimant received medical clearance from Dr. Zimmerman.
12. John G. Phillips, M.D., a neurosurgeon, testified on the claimant’s behalf____
*45416. Dr. Phillips opined that the claimant could perform the position of lot attendant at Globe Airport Parking, though lifting luggage would probably create problems.
17. After reviewing all of the evidence, this Referee accepts the credible testimonies of Dr. Zimmerman and Ms. Hlad and finds that the claimant was capable of performing lighter-duty work, particularly that of a Van Driver/Lot Attendant for Globe Airport Parking for which the claimant received notice and which was available to the claimant as of on or about April 10, 1986.

On the basis of these findings, the referee concluded:

1. The employer has met its burden of proving, through credible medical evidence, that claimant has recovered some of his work ability.
2. The employer has produced evidence of job referrals which fit in the occupational category for which the claimant has been given medical clearance.
3. The employer provided constructive notice of the position of Van Driver/Lot Attendant for Globe Airport Parking, on or about March 31, 1986.

In concluding that Claimant could not perform the duties of the offered positions “for any appreciable duration or without incurring chronic pain,”2 the majority has gone beyond the scope of review afforded to an appellate court and substituted its determination for that which properly belongs to the referee. I would affirm, and conclude as the referee did and as affirmed by the Board, that Employer is entitled to a modification of benefits.

. Furthermore, the majority cites Morgan v. Giant Markets, Inc., 483 Pa. 421, 397 A.2d 415 (1979) for the proposition that "pain is an excellent symptom of an injury." Morgan was a case determining that a causal connection between a work incident and an injury can be established despite lack of medical testimony when a claimant experiences pain when doing an act that requires force or strain, and is inapposite to the instant case.