Allen v. Workmen's Compensation Appeal Board

615 A.2d 927, 150 Pa. Commw. 302, 1992 Pa. Commw. LEXIS 573
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 2, 1992
DocketNo. 111 C.D. 1992
StatusPublished
Cited by3 cases

This text of 615 A.2d 927 (Allen v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Workmen's Compensation Appeal Board, 615 A.2d 927, 150 Pa. Commw. 302, 1992 Pa. Commw. LEXIS 573 (Pa. Ct. App. 1992).

Opinion

CRAIG, President Judge.

The claimant, Bernadette Allen, appeals from an order of the Workmen’s Compensation Appeal Board which affirmed a referee’s decision granting the termination petition filed by the employer, The Leathercraft Company, and denying the claimant’s review petition for payment of medical services.

The issues in this case are: (1) whether the claimant has recovered from her work-related injury; (2) whether the claimant prevailed in her review petition and is entitled to litigation costs; and (3) whether the referee’s failure to disclose a potential conflict of interest necessitates remanding the case for a de novo hearing before a new referee.

The facts in this case, as found by the referee, are as follows. The claimant, employed as a sewing machine operator, injured her rib cage on January 9, 1984, while attempting to lift a box. Pursuant to a notice of compensation payable, which identified the claimant’s injury as myositis and intercostal neuralgia, the claimant received disability benefits beginning on January 17, 1984.

On May 16, 1984, the employer filed a termination petition alleging that the claimant had recovered from her injury as of May 3, 1984. On December 26, 1985, the claimant filed a review petition alleging non-payment of medical bills. The employer filed an answer admitting refusal to pay any medical expenses for psychotherapy, psychological services, or related medications. In an order dated February 8, 1990, the referee marked the claimant’s review petition withdrawn -without prejudice. Additionally, pursuant to an agreement between the parties, the referee ordered the consolidation of the employer’s petition for termination with the claimant’s review petition for payment of medical expenses.

At the hearing, both parties offered testimony from several doctors as to whether the claimant had recovered from her work-related injury and whether the claimant had a psychological disorder resulting from her work injury. In an order dated December 31, 1990, the referee granted the employer’s termination petition finding that, as of May 3, 1984, the [305]*305claimant had fully recovered from her work-related injury. Additionally, the referee determined that the claimant did not suffer from a psychological injury resulting from her work-related injury. Therefore, the referee denied the claimant’s review petition which requested the employer to pay for her psychiatric treatments.

On appeal to the board, the claimant contended that the medical evidence did not support the granting of the termination petition. Additionally, the claimant argued that she is entitled to litigation costs because the employer agreed to pay those bills which were the subject of her review petition. The claimant also stated that, after the referee’s hearing, she discovered that the law firm representing the employer had represented the referee on a previous occasion. Hence, the claimant argued that the referee’s failure to disclose this previous representation mandated a remand for a de novo hearing before a new referee. In an order dated December 23, 1991, the board affirmed the decision of the reféree and also determined that the previous representation of the referee by the employer’s law firm did not require the referee to recuse himself from this case. This appeal followed.

1. Termination Petition

In a termination proceeding the employer bears the burden of proving that the claimant’s work-related disability has ceased. Macaluso v. Workmen’s Compensation Appeal Board, 142 Pa.Commonwealth Ct. 436, 597 A.2d 730 (1991). The claimant contends that the testimony of the employer’s medical witnesses does not support the referee’s finding that the claimant recovered from her work-related injury as of May 3, 1984.

One of the employer’s medical experts, Dr. Bachman, an orthopedic specialist, diagnosed the claimant as having costochondritis of the right chest which is also known as rib cage pain. Dr. Bachman testified that he found no objective orthopedic evidence to support the claimant’s complaint of rib cage pain. Dr. Bachman testified that the chest and rib x-rays he reviewed were negative. Because Dr. Bachman could not find a cause for the claimant’s pain from an orthopedic view, he [306]*306suggested that she contact a doctor who specializes in internal medicine. Dr. Bachman testified that, at the time of his examination, the claimant could return to work.

Dr. Rubin, the pulmonary specialist referred to the claimant by Dr. Bachman, agreed with Dr. Bachman’s diagnosis of costochondritis. Dr. Rubin also noticed the absence of objective findings to support the claimant’s allegations of pain. Dr. Rubin stated that he doubted the validity of the claimant’s pain because she responded inconsistently to his palpitations of her rib area. Dr. Rubin found that the claimant had fully recovered from her work-related injury and concluded that the claimant could return to her pre-injury employment as of May 3, 1984.

As the claimant states, the employer’s doctors did acknowledge the claimant’s subjective complaints of pain. However, the doctors found a lack of objective orthopedic or organic evidence of any residual disability attributable to the claimant’s work injury. In Williams v. Workmen’s Compensation Appeal Board, 127 Pa.Commonwealth Ct. 587, 562 A.2d 437 (1989), this court stated:

Mere reluctance by a physician to discount a claimant’s unconfirmed subjective complaints is not tantamount to an implicit admission that the claimant is not fully recovered from a work-related disability.

After reviewing all the evidence in the record, we agree with the referee that substantial evidence exists to support the finding that the claimant has recovered from her work-related injury and is capable of performing her pre-injury duties as of May 3, 1984.

2. Review Petition

The claimant contends that, after filing her review petition, which requested that the employer pay her outstanding medical bills for psychotherapy and psychological services, the employer agreed to pay for these medical services. Hence, the claimant contends that she prevailed on the review petition and is therefore entitled to litigation costs. However, [307]*307the record discloses that the claimant did not prevail on her review petition.

According to the record, the referee, by agreement of the parties, consolidated the claimant’s review petition with the employer’s termination petition on February 2, 1990. The claimant states that, at a hearing held on June 1, 1990, the claimant advised the referee that the employer would make payment of all outstanding medical bills which were the subject of the claimant’s petition to review. Thus, the claimant contends that the review petition became moot. However, no transcript of this hearing is available. Additionally, the claimant relies on two letters from the employer to the claimant for the proposition that the employer agreed to pay all of the claimant’s medical expenses including those expenses relating to psychiatric treatment. Although the claimant included these letters in the reproduced record, the letters are not part of the original record.

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615 A.2d 927, 150 Pa. Commw. 302, 1992 Pa. Commw. LEXIS 573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-workmens-compensation-appeal-board-pacommwct-1992.