US Airways v. Workers' Compensation Appeal Board (Johnston)

713 A.2d 1192, 1998 Pa. Commw. LEXIS 538, 1998 WL 327279
CourtCommonwealth Court of Pennsylvania
DecidedJune 23, 1998
DocketNo. 2915 C.D. 1997
StatusPublished
Cited by11 cases

This text of 713 A.2d 1192 (US Airways v. Workers' Compensation Appeal Board (Johnston)) 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
US Airways v. Workers' Compensation Appeal Board (Johnston), 713 A.2d 1192, 1998 Pa. Commw. LEXIS 538, 1998 WL 327279 (Pa. Ct. App. 1998).

Opinion

FLAHERTY, Judge.

US Airways (Employer) appeals from an order of the Workers’ Compensation Appeal Board (Board) which affirmed the decision of the Workers’ Compensation Judge (WCJ) dismissing its termination petition. We affirm.

Carol Johnston (Claimant) sustained an injury while working as a flight attendant for Employer on May 18, 1992. Claimant commenced receiving temporary total disability benefits pursuant to a Notice of Compensation Payable issued by Employer for an injury described as a lumbosacral strain and injury to the right hip.

On May 12, 1995, Employer filed a termination petition alleging that as of May 1, 1995, Claimant had fully recovered from her work-related injury. At the WCJ hearing, Claimant testified on her own behalf and Employer introduced the deposition testimony of Dr. Charles J. Burke III. The WCJ credited the testimony of Claimant that she still experiences pain and discomfort as a result of her work-related injury and that she is not able to return to her job as a flight attendant. The WCJ found the testimony of Dr. Burke that Claimant’s work-related injury had resolved not credible. Moreover, the WCJ also determined that Dr. Burke’s testimony was equivocal. On appeal, the Board affirmed and this appeal followed.

Initially, we will address Employer’s argument that this court’s review is limited to determining whether the WCJ committed an error of law or capriciously disregarded competent evidence. Employer maintains that as it was the only party to present evidence and did not prevail before the fact finder, this is the appropriate review. Russell v. Workmen’s Compensation Appeal Board (Volkswagen of America), 121 Pa.Cmwlth. 436, 550 A.2d 1364 (1988). However, we disagree with Employer’s contention that it [1194]*1194was the only party to present evidence concerning Claimant’s me lical condition and find Tomczak v. Workmen’s Compensation Appeal Board (Pro-Aire Transport, Inc.), 150 Pa.Cmwlth. 431, 615 A.2d 993 (1992), distinguishable.

In Tomczak, the claimant sought benefits claiming a work-related disability. At the referee’s hearing, the claimant testified and submitted the testimony of his treating physician. The employer, although presenting evidence as to whether the claimant was an employee or an independent contractor, did not present any evidence on the medical issue. The referee concluded that an employee relationship existed but rejected the claimant’s medical testimony and denied benefits. On appeal, the Board affirmed holding that the referee rejected the claimant’s medical evidence on credibility grounds.

On appeal this court agreed with Tomczak that the capricious disregard standard was applicable “because the claimant bore the burden of proof, the employer had presented no evidence on the medical questions involved, and yet the claimant was denied benefits,” Dana Corporation v. Workers’ Compensation Appeal Board (Hollywood), 706 A.2d 396, 398 (Pa.Cmwlth.1998). This court remanded the case for the referee to explain why he rejected the testimony of the claimant’s medical experts.

In this case, Claimant testified as to her inability to return to work because of the continued pain and discomfort she experiences as a result of her work-related injury. Thus, we find the facts in this case to be more similar to those found in Victor’s Jewelers v. Workmen’s Compensation Appeal Board (Bergelson), 145 Pa.Cmwlth. 630, 604 A.2d 1127 (1992), rather than Tomczak. In Victor’s Jewelers, the employer filed a termination petition and in support thereof presented the testimony of three doctors. The claimant “testified and outlined his present complaints of injuries but presented no medical testimony.” Id. 604 A.2d at 1128. The referee denied the employer’s petition and the Board affirmed. On appeal, this court determined that inasmuch as the claimant testified that back pain and numbness prevented his return to work, the proper review was whether substantial evidence supports the referee’s findings or whether an error of law was committed. Here, as in Victor’s Jewelers, Claimant testified as to her inability to return to work because of pain and discomfort. As such, because both parties presented evidence, our review is limited to' determining whether an error of law was committed or whether substantial evidence supports the WCJ’s findings. Id.

Next, we will address Employer’s argument that the WCJ erred in denying its termination petition. In order to obtain a termination of benefits, it is the employer’s burden to prove that all disability related to a compensable injury has ceased. Udvari v. Workmen’s Compensation Appeal Board (USAir, Inc.), 550 Pa. 319, 705 A.2d 1290 (1997).

“In a case where the claimant complains of continued pain, this burden [in a termination proceeding] is met when an employer’s medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to work without restrictions and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury. If the WCJ credits this testimony, the termination of benefits is proper.” Udvari at 326, 705 A.2d at 1293.

In this case, the WCJ did not find the testimony of Dr. Burke credible. (F.F.12.) Moreover, he also found it equivocal. (F.F.8.) Whether a physician’s testimony is equivocal is a question of law reviewable by this court. Terek v. Workmen’s Compensation Appeal Board (Somerset Welding & Steel), 542 Pa. 453, 668 A.2d 131 (1995). In this case the WCJ determined that Dr. Burke’s testimony was equivocal because:

on the one hand he opined that claimant had fully recovered from her work injury of May, 18,1992, and on the other hand he opined that claimant has a chronic pain syndrome of ‘some sort’; that he was impressed by the ‘sincerity of her recitation’ of pain, giving credit to her complaints of pain; that her problem had become ‘chronic in nature with possibly some type of [1195]*1195psychological influences’; that he was not able to state that her chronic pain syndrome was not work-related; that claimant’s accident could have aggravated her pain syndrome.

(F.F.No.8.)

We agree with Employer that viewing Dr. Burke’s testimony as a whole, his testimony was not equivocal. Dr. Burke maintained throughout his deposition that Claimant’s work related soft tissue injury to her hip had fully resolved itself. (R.R. at 43a, 44a.) Although Dr. Burke acknowledged that Claimant continued to experience pain, this does not make his testimony equivocal. The existence of a claimant’s complaints of pain does not require the WCJ to find for the claimant.

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713 A.2d 1192, 1998 Pa. Commw. LEXIS 538, 1998 WL 327279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-airways-v-workers-compensation-appeal-board-johnston-pacommwct-1998.