Jenkins v. Workmen's Compensation Appeal Board

677 A.2d 1288, 1996 Pa. Commw. LEXIS 298
CourtCommonwealth Court of Pennsylvania
DecidedJune 7, 1996
StatusPublished
Cited by14 cases

This text of 677 A.2d 1288 (Jenkins 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
Jenkins v. Workmen's Compensation Appeal Board, 677 A.2d 1288, 1996 Pa. Commw. LEXIS 298 (Pa. Ct. App. 1996).

Opinions

RODGERS, Senior Judge.

Gretchen Jenkins (Claimant) petitions for review of an order of the Workmen’s Compensation Appeal Board that affirmed a Workers’ Compensation Judge’s (WCJ) decision granting Woodville State Hospital’s (Employer) termination petition. We affirm.

On January 29, 1989, Claimant sustained a work-related injury to her left shoulder, while performing her duties as a licensed practical nurse. Employer issued a notice of compensation payable and Claimant received total disability benefits.

On March 19, 1993, Employer filed a termination petition,1 alleging that Claimant’s disability from her work-related injury had ceased as of March 11,1993, and that Claimant was able to resume her pre-injury job. Employer also requested a supersedeas. Claimant denied the allegation and hearings were held before a WCJ.

[1290]*1290At the first hearing held on May 12, 1993, Employer submitted the report of William H. Mitchell, M.D., and Claimant submitted fifteen reports from numerous doctors that had treated Claimant since her injury. Both parties objected to the other parties’ submissions on hearsay grounds. The WCJ sustained the objections on the merits only, but determined that the reports would be considered in connection with the supersedeas request. On June 23,1993, the WCJ issued an interlocutory order granting Employer’s su-persedeas request.

With regard to the merits of the case, Employer presented the deposition testimony of Dr. Mitchell, a board certified orthopedic and hand surgeon, who examined Claimant for this litigation. Claimant testified on her own behalf and presented the deposition testimony of Joseph W. Bardzil, M.D., board certified in family practice, who has been Claimant’s treating physician. Claimant also presented the deposition testimony of Bruce M. Cotugno, M.D., who is board certified in neurology and psychiatry. Reports from various other doctors who participated in Claimant’s care were also made a part of the record and were reviewed by the doctors who • were deposed by the parties. No evidence of job availability was offered.

In his findings of fact, the WCJ set forth in detail the testimony of Claimant and the medical witnesses. The WCJ accepted Dr. Mitchell’s testimony as credible and persuasive, but rejected Dr. Bardzil’s and Dr. Co-tugno’s testimony as not credible; however, no credibility determination was made as to Claimant. The WCJ further found that Claimant did not suffer from reflex sympathetic dystrophy (RSD)2 and had no residual disability from the 1989 work injury to her shoulder. The WCJ further found that:

10. ... Claimant exhibited none of the objective findings associated with reflex sympathetic dystrophy, such as abnormal bone scan, bone demineralization, shrinking of the skin, changes around the nail beds or exquisite tenderness to light touch. The undersigned notes that Dr. Mitchell is an experienced orthopedic surgeon who has treated a number of patients with reflex sympathetic dystrophy. On the other hand, Dr. Bardzil is a family physician and Dr. Cotugno has only been in practice a little over a year. Those two physicians each treated one other patient with symptoms with reflex sympathetic dystrophy. Additionally, it is noted that a number of physicians who have examined claimant disagreed that claimant suffers from reflex sympathetic dystrophy.

(WCJ Decision, p. 5.)

The WCJ concluded that Employer had met its burden of proof that Claimant’s disability had ceased as of March 11, 1993, and granted Employer’s termination petition. Claimant appealed to the Board, which affirmed. The Board quoted extensively from Dr. Mitchell’s testimony, explaining that this testimony represented substantial, competent evidence to support the WCJ’s findings that Claimant had completely recovered from her work injury and that she suffered no residual disability.

On appeal,3 Claimant raises the following issues for our review: (1) whether the admitted existence of residual symptoms including pain and a temperature differential between Claimant’s hands required the establishment by Employer of work availability; (2) whether the finding that Dr. Mitchell’s testimony was credible was error in that his opinion was contrary to acceptable medical literature; (3) whether the WCJ erred in finding that Claimant’s treating physician believed that Claimant was able to work when the record demonstrates the opposite; and (4) whether Claimant’s constitutional due [1291]*1291process rights were violated when a superse-deas was issued without an evidentiary hearing.

The thrust of Claimant’s first argument is that Dr. Mitchell’s testimony, although relied upon by the WCJ for the finding that Claimant was completely recovered from her work-related injury, cannot substantiate a finding of a complete recovery resulting in an order of termination; that at best Dr. Mitchell’s testimony can support a suspension which cannot be granted because no evidence of job availability was shown by Employer. Claimant bases this argument on Dr. Mitchell’s statement during cross-examination that the coolness of Claimant’s left hand in comparison to her right one (admittedly observed by Dr. Mitchell during the physical examination) could be a residual of her work-related condition. Claimant’s argument also rests on Dr. Mitchell’s acknowledgment that Claimant could be experiencing burning pain symptoms, although the doctor testified that he found no objective evidence that would account for Claimant’s complaints of pain.

A significant proportion of all three doctors’ testimony centered on the question whether Claimant suffered from RSD; however, the salient point is whether Employer has met its burden of proof when petitioning for a termination, i.e., whether Employer has proven that Claimant’s disability has ceased entirely or is no longer the result of a work-related injury. See McFaddin v. Workmen’s Compensation Appeal Board (Monongahela Valley Hospital), 153 Pa.Cmwlth. 252, 620 A.2d 709 (1993).

In McFaddin, the employer sought a termination petition, alleging that the claimant, a nursing assistant, was fully recovered from her work-related lower back injury. The referee accepted the testimony of employer’s medical witness as more credible than the testimony of claimant’s medical witness and granted the termination petition. On appeal, one of the arguments made by the claimant concerned the failure of the employer to present evidence of job availability. The court pointed out that this element was not a part of the employer’s burden because the referee had found that the claimant had fully recovered from her injury. The court further stated that the employer’s doctor did not acknowledge any continuing pain and, thus, his testimony supports a finding of full recovery.

This Court is also cognizant of the proposition advanced by the claimant in Shepherd v. Workmen’s Compensation Appeal Board, 66 Pa.Cmwlth. 101, 443 A.2d 862 (1982). The claimant complained of pain and swelling of his knee. The claimant argued that a referee must find in favor of a claimant who complains of continued subjective symptoms even in the absence of medical evidence of an objective basis for his complaints. The Shepherd

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Bluebook (online)
677 A.2d 1288, 1996 Pa. Commw. LEXIS 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jenkins-v-workmens-compensation-appeal-board-pacommwct-1996.