Stouffer v. Jones Motor Co., Inc.

• Decision Date: 24 September 1980
• Citation: 419 A.2d 820,54 Pa.Cmwlth. 58
• Parties: W. Max STOUFFER, Petitioner, v. JONES MOTOR CO., INC., Respondent.
• Court: Pennsylvania Commonwealth Court

Page 820

419 A.2d 820

54 Pa.Cmwlth. 58

W. Max STOUFFER, Petitioner, v. JONES MOTOR CO., INC., Respondent.

Commonwealth Court of Pennsylvania.

Argued June 5, 1980.

Decided Sept. 24, 1980.

John McCrea, III, Newville, for petitioner.

W. Jeffrey Sidebottom, Lancaster, for respondent.

Before MENCER, CRAIG and MacPHAIL, JJ.

MENCER, Judge.

W. Max Stouffer (claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board), which affirmed a referee's dismissal of claimant's petition to set aside a final receipt. We affirm.

Claimant had sustained a work-related back injury on February 22, 1973, while working for Jones Motors, Inc. (employer), and received workmen's compensation benefits through June 1, 1973. Claimant executed a final receipt on July 12, 1973 but thereafter, on June 3, 1975, filed a petition to set aside the final receipt, alleging that he had suffered a recurrence of the disability caused by the February 1973 incident. The referee and Board dismissed the petition, and this appeal followed.

Claimant argues that the referee capriciously disregarded evidence of his doctor, who testified that claimant was disabled. Employer, however, presented medical testimony that claimant's injury was fully healed by June 2, 1973 and that claimant was not disabled. It is axiomatic that questions of credibility are left to the referee, Workmen's Compensation Appeal Board v. Quick, 25 Pa.Cmwlth. 203, 359 A.2d 852 (1976), and the fact that the referee believes the testimony of one doctor over that of another is not a capricious disregard of the evidence. Kocher v. Workmen's Compensation Appeal Board, --- Pa.Cmwlth. ---, 415 A.2d 162 (1980). ¹

Accordingly, we enter the following

ORDER

AND NOW, this 24th day of September, 1980, the order of the Workmen's Compensation Appeal Board in the above captioned case, dated June 21, 1979, affirming the dismissal of the petition of W. Max Stouffer, is hereby affirmed.

1 Claimant's other argument, that the record does not support the finding of the referee that claimant's chronic back problem, dating back to 1961, is the source of claimant's current disability, is wholly meritless. Dr. Bowman, claimant's own doctor, clearly testified that claimant's problem was ongoing:

"Q. Doctor, again, the extension is the ability to flex, tenderness, these are the same complaints he has had all the way back to 1961 again?

A. I would say it's a pretty steady, constant report from the earliest times I knew him...