Giant Eagle, Inc. v. Workmen's Compensation Appeal Board

635 A.2d 1123, 161 Pa. Commw. 35, 1993 Pa. Commw. LEXIS 782

• Court: Commonwealth Court of Pennsylvania
• Decided: December 28, 1993
• Docket: 1401 C.D. 1992
• Status: Published

Opinions

FRIEDMAN, Judge.

Giant Eagle, Inc. (Giant Eagle) petitions for review¹ of an order of the Workmen’s Compensation Appeal Board (WCAB) affirming a referee’s dismissal of Giant Eagle’s petition to terminate the compensation benefits of Eleanor Chambers pursuant to section 413 of The Pennsylvania Workmen’s Compensation Act (Act).² We affirm.

Chambers had been employed by Giant Eagle as a part-time meat wrapper for approximately eight months when, on May 1,1989, she was injured while changing a tape on an automatic meat wrapping machine. Chambers received an electric shock to her right hand which radiated throughout her body leaving her with pain and numbness, particularly on her right side. As a result of this injury, Chambers received compensation pursuant to a Notice of Compensation Payable at the rate of $133.00 per week.

On December 4, 1989, Giant Eagle filed a petition for termination of compensation alleging that, based upon a September 19, 1989 examination by Gurbachan S. Kathpal, M.D., Chamber’s treating physician, Chambers had fully recovered from her May 1, 1989 injury. Chambers filed an answer denying all material allegations and maintaining that she remained temporarily, totally disabled as a result of that injury. Accordingly, hearings were held before a referee.

In support of its termination petition, Giant Eagle presented medical records and an affidavit of recovery, all prepared by Dr. Kathpal,³ as well as the deposition testimony of Dr. Kathpal taken on March 28, 1990. In this testimony, Dr. Kathpal stated that he had treated Chambers for persistent pain in her right side and for tingling and numbness in her hands from the time of her injury until September of 1989. (R.R. at 56a-57a.) Dr. Kathpal testified that initially he diagnosed Chambers’ complaints as secondary to her electric shock injury and felt that she would probably be disabled only for a few months. After reviewing the results of an electromyography (EMG) performed on Chambers, Dr. Kathpal also believed that Chambers had carpal tunnel syndrome in her right hand which was unrelated either to Chambers’ work duties or to her electric shock injury.⁴ (R.R. at 59a-65a, 68a.) Dr. Kathpal then testified that because Chambers still had significant pain when he last saw her in September of 1989, he recommended that Chambers undergo surgery for the carpal tunnel syndrome before returning to work. (R.R. at 68a). However, Dr. Kathpal felt that Chambers could perform restricted part-time work even with her present symptoms. (R.R. at 70a-71a.)

On cross-examination, Dr. Kathpal discussed the results of a somatosensory evoked responses (SER) test which he had performed on Chambers. Dr. Kathpal explained that while an EMG tested nerves outside the spinal cord, the SER test is concerned with the conduction of responses within the spinal cord and brain. Dr. Kathpal reported that the SER test results from Chambers’ right arm and leg were abnormal, suggesting that her problem was in the spinal cord rather than in the nerves. (R.R. at 75a.) Finally, Dr. Kathpal opined that as of September 19,1989, Chamber’s carpal tunnel syndrome prevented her from returning to her regular work but that all the symptoms of her electric shock had “pretty much” subsided. (R.R. at 82a, 97a.) He agreed that Chambers would still experience an occasional twinge of tingling or numbness but felt that these would not hamper her return to work. (R.R. at 82a.) Dr. Kathpal also stated that whatever was causing Chamber’s problem in her right hand, that was the cause of her disability at this time. (R.R. at 82a.)

A subsequent hearing was held on December 3, 1990, at which Chambers testified on her own behalf.⁵ She stated that during the summer of 1990, she began treatments for neck problems at the Bradley Physical Therapy Clinic under the direction of Dr. Kathpal. (R.R. at 39a-40a.) She admitted that she had not received any medical treatment between her last visit to Dr. Kathpal in September of 1989 and the start of this physical therapy, but testified that she returned to Dr. Kathpal because she continued to suffer from the neck pain and headaches that she had experienced ever since the time of her accident.⁶ (R.R. at 40a-41a.)

In addition to her own testimony, Chambers also offered two additional reports of Dr. Kathpal, dated September 24, 1990 and October 10,1990 respectively. In the September 24 report, Dr. Kathpal related that he had seen Chambers again in June of 1990 because she had been having a lot of neck pain and restricted movement of her cervical spine. He then reported that a magnetic scan of the cervical spine had revealed a mild compression at the C-6/C-7 level due to bulging of the disc. (R.R. at 134a.) In the report dated October 10, Dr. Kathpal wrote, “I feel Mrs. Chambers did injure her neck at the same time she suffered the electrical shock injury on May 1, 1989. All these symptoms pretty much started during that time and a significant degree of pulling can result in various kinds of injuries.” (R.R. at 135a.)

Along with these records, Chambers recalled Dr. Kathpal as a witness and offered his deposition testimony taken on March 12,1991, this time on Chambers’ behalf. During direct examination, Dr. Kathpal testified that Chambers returned to him in June of 1990 at the suggestion of her physical therapist because of persistent pain in her right arm and neck. Upon re-examination, Dr. Kathpal found that Chambers had a disc out of place between the 6th and 7th vertebrae which he stated may have contributed to the arm and hand problems that Chambers had complained of “all along.” (R.R. at 110.) When questioned concerning his conclusion that Chambers injured her neck at the same time she suffered her electric shock injury, Dr. Kathpal explained that while it was difficult to pinpoint the cause of Chambers’ problem, he surmised that the two occurred simultaneously because there was no intervening incident which would explain the later neck pain. (R.R. at Ilia.) Dr. Kathpal also stated that Chambers’ symptoms could stem from electric shock, carpal tunnel syndrome or an injury to the C-6/C-7 level. (R.R. at 11 la-112a, 115a-117a, 128a.) On cross-examination, Dr. Kathpal admitted that because Chambers had not indicated any neck problems when he treated her in 1989 but brought these complaints to his attention for the first time in June of 1990, it would be difficult to correlate Chambers’ neck problem with her May 1, 1989 injury due to a lack of documentation.⁷ (R.R. at 128a-129a.)

Based upon this evidence, the referee made the following pertinent findings:

5. Based upon the testimony of Dr. G.S. Kathpal, who testified in this matter for the defendant and subsequently testified on a second occasion for the claimant, your Referee finds as a fact that the claimant continues to remain totally incapable of performing her former job as a meat wrapper for the defendant. Further, your Referee finds as a fact, based upon Dr. Kathpal’s testimony, that the claimant remains disabled as a result of residual pain and numbness in her right extremity. Your Referee does not find that Dr. Kathpal’s testimony supports a finding or conclusion that the claimant has fully recovered from her work injury. To the contrary, your Referee finds from Dr. Kathpal’s testimony and reports that the claimant has continuing effects of her electrical shock injury, and further has sustained a cervical injury causing pain and numbness in the neck and right extremity as a result of the work-related injury. In making this finding, your Referee has also considered the testimony of the claimant’s therapist, Joseph Bradley, and accepts the same as credible.

7. Your Referee finds as a fact that the defendant has failed to prove by sufficient, competent and credible evidence that the claimant has recovered from her work-related injury or that her disability has changed in any way.

9. Your Referee finds as a fact that the claimant has incurred and continues to incur reasonable and necessary expenses for the treatment of her work-related injury pursuant to Section 306(f) of the Pennsylvania Workmen’s Compensation Act, as amended. Your Referee finds as a fact all of the claimant’s treatment with Dr. Kathpal and Joseph Bradley is causally related to claimant’s work-related injury of May 1, 1989. The defendant remains responsible for the payment of all such medical expenses.

(Referee’s Findings of Fact Nos. 5, 7, and 9; R.R. at 190a-191a.)

Having determined that Chambers’ disability did not cease and terminate, the referee concluded, as a matter of law, that Giant Eagle failed to meet its burden of proof and dismissed Giant Eagle’s termination petition.⁸ The WCAB affirmed, concluding that taken as a whole, the record contained sufficient competent evidence to support the referee’s findings.

On appeal,⁹ Giant Eagle argues that the referee erred by finding that Chambers’ disability had not ceased and by concluding that Giant Eagle had failed to meet its burden of proof entitling it to terminate Chambers’ benefits. Specifically, Giant Eagle asserts that referee findings 5, 7 and 9 were not supported by substantial evidence; rather, Giant Eagle contends that Dr. Kathpal’s testimony established that Chambers had fully recovered from her electric shock injury as of September 1989. Further, Giant Eagle maintains that even if Chambers did not fully recover from the electric shock, Dr. Kathpal’s testimony did not support the referee’s determination that Chambers also sustained a cervical injury at the time of her May 1, 1989 work accident because the testimony clearly was equivocal in that regard. However, in making these arguments, Giant Eagle seems to misunderstand the burden borne by an employer in termination cases.

It has long been held that the burden of proof in a termination petition is on the employer to show that all disability related to the compensable injury has ceased and, if a claimant is currently disabled, the employer must show a lack of causal connection between that disability and the compensable injury. McGee v. L.F. Grammes & Sons, 477 Pa. 143, 383 A.2d 864 (1978); Iacono v. Workmen’s Compensation Appeal Board (Chester Housing Authority and PMA Group), 155 Pa.Commonwealth Ct. 234, 624 A.2d 814 (1993); Central Pennsylvania Community Action, Inc. v. Workmen’s Compensation Appeal Board (Probeck), 103 Pa.Commonwealth Ct. 278, 520 A.2d 112 (1987); McGinley v. Workmen’s Compensation Appeal Board (Acme Markets, Inc.), 77 Pa.Commonwealth Ct. 214, 465 A.2d 147 (1983). This burden is considerable because disability is presumed to continue until demonstrated otherwise. Olivetti Corp. v. Workmen’s Compensation Appeal Board (Robinson), 75 Pa.Commonwealth Ct. 584, 462 A.2d 934 (1983). Moreover, the burden never shifts to the claimant to prove the existence of a causal connection between his disability and his injury. Probeck; McGinley. In fact, there is no burden on the claimant to prove anything at all because having once established a right to benefits, those benefits remain in effect unless and until the employer satisfies its burden of proving entitlement to termination. Iacono. Giant Eagle simply has not met that burden of proof in this case.

First, with regard to the question of Chambers’ continued disability, we note that Chambers herself testified that she continues to experience pain and does not feel capable of returning to work. We have held that such pain, even without evidence of anatomical cause, is sufficient to support a finding of continued disability. JAB Enterprises, Inc. v. Workmen’s Compensation Appeal Board (Haehn), 79 Pa.Commonwealth Ct. 638, 470 A.2d 210 (1984); Hygrade Food Products v. Workmen’s Compensation Appeal Board, 62 Pa.Commonwealth Ct. 448, 437 A.2d 89 (1981). Indeed, a referee can give more credence to a claimant’s testimony regarding incapacitating pain than to a doctor’s testimony. Hygrade.

As to the medical testimony offered, this case is unusual in that the referee, instead of hearing conflicting medical testimony expressed by different doctors, was presented with the testimony of only one doctor, taken on two different occasions. There is no question that in the March 1990 deposition taken by Giant Eagle, Dr. Kathpal indicated that Chambers had basically recovered from her work injury and that any disability was caused by non-work-related carpal tunnel syndrome.¹⁰ However, in his March 1991 testimony on behalf of Chambers, made with the benefit of further studies, Dr. Kathpal acknowledged that Chambers still suffered considerable pain and had restricted neck movement, an evaluation shared by Chambers’ physical therapist. The referee, in the proper exercise of his discretion, may accept or reject the testimony of any witness in whole or in part and if the evidence thus accepted is such as a reasonable mind might accept as adequate to support a conclusion, those findings cannot be disturbed on appeal. Lehman v. Workmen’s Compensation Appeal Board (Temple University Hospital), 64 Pa.Commonwealth Ct. 381, 439 A.2d 1362 (1982). Here, we agree with the WCAB that the record as a whole contains substantial evidence to support the referee’s conclusion that Chambers’ disability has not ceased.

Giant Eagle also contends, however, that even if Chambers did not fully recover from her May 1, 1989 injury, we must, at the very least, reverse the WCAB insofar as it affirms Chambers’ cervical injury as being work-related. We disagree.

Dr. Kathpal testified that Chambers’ continuing pain and other symptoms had three possible causes: electric shock, carpal tunnel syndrome or cervical injury. Dr. Kathpal opined that Chambers sustained her cervical injury at the same time she received her electric shock; however, he admitted that this connection was surmise on his part and that while he believed it possible, he lacked the documentation to definitively support the relationship. Giant Eagle points to this testimony, maintaining that because it was equivocal, it could not support Chambers’ position that she suffered a work-related cervical injury on May 1,1989. However, the question of whether Dr. Kathpal’s testimony was equivocal concerning the causal relationship between Chambers’ cervical injury and her May 1, 1989 injury is purely academic. Indeed, by his very inability to state conclusively the cause of Chambers’ ongoing symptoms, Dr. Kathpal negates Giant Eagle’s burden and establishes Chambers’ ongoing disability. As previously stated, in the context of a termination petition, Chambers has no burden to prove a causal connection between her compensable injury and her continuing disability. Rather, Giant Eagle had the burden of proving the lack of any causal connection. Iacono; Unity Builders, Inc. v. Workmen’s Compensation Appeal Board, 50 Pa.Commonwealth Ct. 527, 413 A.2d 40 (1980). Because Giant Eagle was unable to present any competent evidence to dissociate Chambers’ cervical injury from her work accident on May 1, 1989, Giant Eagle has failed to meet this burden. Accordingly, we affirm.

ORDER

AND NOW, this 28th day of December, 1993, the order of the Workmen’s Compensation Appeal Board, dated June 17, 1992, is affirmed.

1 . This case was reassigned to the opinion writer on May 28, 1993.

2 . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772.

3 . Following his September 19, 1989 examination, Dr. Kathpal signed a physician’s affidavit of recovery form indicating that Chambers had recovered from her work injury and could return to her duties at Giant Eagle, although limited because of non-work-related carpal tunnel syndrome. Again, in a report dated October 13, 1989, Dr. Kathpal stated that Chambers' symptoms from her electric shock had improved but that she continued to suffer from carpal tunnel syndrome which prevented her return to work.

4 . This EMG test was performed by a Dr. Bender; however, another physician, Dr. Frost, also performed an EMG on Chambers and found no evidence of carpal tunnel syndrome. (R.R. at 76a.)

5 . Chambers also testified briefly at a hearing on February 9, 1990. At that time, Chambers had stopped treating with Dr. Kathpal but stated that she did not feel able to return to work because she still suffered from the effects of her work accident. Chambers testified that she continued to have headaches, pain in her arm and neck and numbness in her fingers.

6 . Chambers also offered the deposition testimony of Joseph Bradley, a registered physical therapist, who was treating Chambers at the physical therapy clinic. Bradley stated that he first saw Chambers in May of 1990, at which time he performed a brief screening examination and recommended that Chambers return to Dr. Kathpal for further evaluation of a possible cervical spine injury. Chambers did so, and Dr. Kathpal subsequently referred Chambers to Bradley for treatment of her cervical problem. At the time of Bradley’s deposition, Chambers was receiving therapy three times a week for neck pain.

7 . Contrary to Dr. Kathpal’s testimony, Chambers testified that she informed Dr. Kathpal that she was experiencing neck pain and headaches during the first examination she had with him after the accident. (R.R. at 41a.)

8 . The referee’s order of June 1, 1991 also vacated and set aside a previous interlocutory order dated February 9, 1990 which had granted Giant Eagle’s request for supersedeas during the pendency of the termination petition proceedings. The same order also directed the reinstatement of compensation benefits plus 10% per annum interest on all deferred payments, awarded costs of $1206.93, directed Giant Eagle to pay all reasonable medical bills, and approved the attorney fee agreement.

9 . Our scope of review is limited to determining whether an error of law was committed, whether any necessary findings of fact are unsupported by substantial evidence or whether constitutional rights have been violated. Carrier Coal Enterprises v. Workmen’s Compensation Appeal Board (Balla), 118 Pa.Commonwealth Ct. 201, 544 A.2d 1111 (1988).

10 . We note that although in his earlier testimony, Dr. Kathpal stated that Chambers had "pretty much” recovered from her electric shock injury, he acknowledged that Chambers occasionally would still have tingling and numbness.