Thomas v. Workmen's Compensation Appeal Board

672 A.2d 368, 1996 Pa. Commw. LEXIS 55
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 16, 1996
StatusPublished
Cited by2 cases

This text of 672 A.2d 368 (Thomas 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
Thomas v. Workmen's Compensation Appeal Board, 672 A.2d 368, 1996 Pa. Commw. LEXIS 55 (Pa. Ct. App. 1996).

Opinion

FRIEDMAN, Judge.

Yvonne Thomas (Claimant) appeals from an order of the Workmen’s Compensation Appeal Board (WCAB) affirming the decision of a referee1 which awarded compensation to Claimant for a fifteen-week period.

Claimant was employed by Dress Barn (Employer) as a salesperson and stock worker when, on May 31, 1989, Claimant slipped on a plastic bag and fell while in the course of her employment. As a result,. Claimant sustained an injury to her lower back, right shoulder and buttocks. (Referee’s Findings of Fact, Nos. 1, 3.) Claimant gave proper notice of her work-related injury to Employer’s manager and sought treatment at a hospital emergency room. Several days later, Claimant sought further treatment from Barry A. Koch, D.O. Claimant has not returned to work since the injury. (Referee’s Findings of Fact, Nos. 4, 5, 7.)

On June 27, 1989, Employer issued a Notice of Workmen’s Compensation Denial, denying compensation because “Claimant did not sustain a work related accident.” (R.R. at 36.) At Employer’s request, Jeffrey Ma-lumed, M.D., conducted an independent medical examination of Claimant on August 21, 1995. (R.R. at 104.) Dr. Malumed issued a medical report on that same date, stating that Claimant sustained a mild lumbar sprain as a result of the May 31,1989 accident, and that Claimant should be able to return to work within two weeks. (R.R. at 135.)

Four days later, on August 25, 1989, Claimant filed a Claim Petition, alleging that she is totally disabled due to the work-related injury of May 31, 1989. Employer filed an answer denying “without knowledge” the material allegations of the petition, (R.R. at 3), and a hearing was held before a referee.

At the hearing, Claimant testified on her own behalf and presented the deposition of Dr. Koch. Dr. Koch testified that Claimant suffered from a contusion to her lower back, a sprain to her lumbosacral area, a somatic dysfunction subsequent, a secondary cervical sprain, and right shoulder injuries. (Referee’s Finding of Fact, No. 8.) Dr. Koch further testified that these were soft-tissue injuries, which he treated with physical therapy. (Referee’s Findings of Fact, Nos. 9,10.) Dr. Koch opined that the injuries were work-related and that, from May 31, 1989 to December 1, 1989, Claimant could not perform her normal' job duties because of these injuries. (Referee’s Finding of Fact, No. 8.)

In opposition, Employer offered the deposition testimony of Dr. Malumed, who stated that Claimant sustained a soft-tissue injury [370]*370to her lower back and shoulder, and that, as of the date of his exam, the injury had resolved to the extent that Claimant could return to work without restriction after two weeks of active stretching exercises. Dr. Malumed further testified that the physical therapy which Claimant had received for her injuries was not reasonable, necessary or correct. (Referee’s Findings of Fact, Nos. 11-12.) .

Upon consideration of the evidence, the referee found that Claimant sustained a work-related soft-tissue injury to her lower back and right shoulder on May 31,1989, and that the injury was not permanent in nature. (Referee’s Finding of Fact, No. 13.) Concerning the extent of the injury, the referee accepted the testimony of Dr. Malumed and found that Claimant’s injury had resolved to the extent that she could return to work within two weeks of the August 21, 1989 examination. (Referee’s Finding of Fact, No. 14.) Thus, the referee awarded Claimant $133.00 per week in compensation benefits, based on an average weekly wage of $135.67, for fifteen weeks from the date of the injury. (Referee’s Conclusion of Law, No. 2.)

In addition, the referee found that the medical treatment given to Claimant during the fifteen weeks following her injury was reasonable and necessary, and that Employer should reimburse Claimant for medical bills incurred during that period of time. However, the referee also found that medical treatment given to Claimant after the fifteen-week period was not reasonable and necessary. (Referee’s Finding of Fact, No. 16.) Finally, the referee found that Employer established a reasonable contest to Claimant’s Claim Petition and, therefore, Employer was not obligated to pay Claimant’s attorney fees. (Referee’s Finding of Fact, No. 18.)

Claimant appealed to the WCAB, which affirmed the decision of the referee. Claimant then appealed to this court; however, because the WCAB granted Claimant a rehearing, we remanded the case. Upon remand, the WCAB again affirmed the decision of the referee.

On appeal to this court,2 Claimant argues that the WCAB erred in affirming the referee’s decision because: (1) Dr. Ma-lumed’s testimony does not constitute substantial competent evidence that Claimant could return to work two weeks after Dr. Malumed examined Claimant; (2) Employer had no basis for its contest when it issued the Notice of Workmen’s Compensation Denial and, thus, is liable for Claimant’s attorney fees; (3) Employer is liable for all medical bills incurred from the time of Claimant’s injury until the date of the referee’s decision, whether or not the treatment was reasonable and necessary; and (4) the record does not contain substantial evidence to support the referee’s finding that Claimant’s average weekly wage was $135.67.

I.

In a claim proceeding, the claimant bears the burden of establishing a right to compensation and of proving all necessary elements to support an award. Inglis House v. Workmen’s Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). This means that the claimant must prove both the existence and the continuation of a work-related injury which resulted in a loss of earning power. Rossi v. Workmen’s Compensation Appeal Board (City of Hazleton), 164 Pa.Cmwlth. 233, 642 A.2d 1153, appeal denied, 539 Pa. 660, 651 A.2d 545 (1994).

Here, Claimant offered the testimony of Dr. Koch to establish that Claimant’s work-related injury continued until at least December 1, 1989. However, the referee rejected this testimony and, instead, accepted the testimony of Dr. Malumed that Claimant could return to work two weeks after Dr. Ma-lumed’s examination of Claimant.

Claimant, however, contends that, because Dr. Malumed could not say that Claimant [371]*371was able to return to work without restriction as of the date of his examination of Claimant and because Dr. Malumed merely presumed that Claimant would be able to return to work without restriction two weeks thereafter, his testimony does not constitute substantial competent evidence to support the referee’s finding in that regard.

For a medical witness’s testimony to be considered unequivocal and competent, a necessary foundation must be provided upon which the medical witness bases his opinion. Whiteside v. Workmen’s Compensation Appeal Board (Unisys Corp.), 168 Pa.Cmwlth. 488, 650 A.2d 1202 (1994), appeal denied, — Pa. -, 664 A.2d 978 (1995).

Dr. Malumed wrote in his August 21, 1989 medical report that Claimant “should be” able to return to work in two weeks. Dr.

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672 A.2d 368, 1996 Pa. Commw. LEXIS 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-workmens-compensation-appeal-board-pacommwct-1996.