Ernst v. Workers' Compensation Appeal Board

RODGERS, Senior Judge. Terry L. Ernst (Claimant) petitions for review of an order of the Workers’ Compensation Appeal (Board) that affirmed a decision by a workers’ compensation judge (WCJ) granting the termination petition filed by Rollins Transportation Systems (Employer). We reverse. On January 19, 1990, Claimant sustained a work-related lower back injury and received total disability benefits pursuant to a notice of compensation payable issued by Employer. On October 12, 1994, Employer filed a termination petition alleging that, as of July 23, 1994, Claimant was fully recovered from his work-related injury. Claimant denied the allegations and healings were held before a WCJ. Employer presented the deposition testimony of Harold W. Pearson, M.D., a board certified orthopedic surgeon, who performed an independent medical evaluation on June 23, 1994.1 Employer also entered into evidence a surveillance film of Claimant that depicted Claimant aiding his son with the repair of an automobile in July of 1993. Claimant and his wife testified on Claimant’s behalf and presented the deposition testimony of Claimant’s treating physician, David W. Allen, M.D., a board certified neurosurgeon.2 Dr. Pearson testified that Claimant explained the circumstances of his injury, that Claimant underwent two laminectomies, and that Claimant complained of pain contending that it severely reduced his ability to perform everyday activities. Dr. Pearson testified to his examination findings, explaining that some of the results were subjective and inconsistent with organic disease. The doctor stated that following the examination he diagnosed Claimant as suffering from chronic back syndrome and overlay. Dr. Pearson further testified that subsequent to the examination he reviewed the surveillance tape and that he changed his opinion from overlay to malingerer. He clarified this opinion by stating that it coincided with his prior opinion expressed following the [1087] examination. Dr. Pearson further indicated that he filled out a physical capacities chart providing some restrictions. When asked on direct examination for his opinion concerning a return to work without restrictions, Dr. Pearson replied that Claimant evidenced no objective signs of a disability, but that “he has to do the restrictions that I gave him on the physical capacities study.” (Dr. Pearson’s deposition, p. 21). Then, on cross-examination, Dr. Pearson indicated that although he thought all physical disability had resolved, he could not prove it. He further stated that although Claimant may have ongoing problems he believed Claimant was “faking my examination.” Id. at p. 22. Following this exchange, Dr. Pearson stated that: A. I’m giving him the benefit of the doubt and stating that he is in the same categories as all the other patients that I have treated who have similar jobs having had two laminectomies. Q. Meaning that they have ongoing disabilities? A. They have ongoing restrictions. Id. Following the close of the record, the WCJ granted Employer’s termination petition. Nine of the eighteen findings of fact listed by the WCJ in his decision are as follows: 8. In July 1993 the defendant hired a private investigator and surveillance film of the claimant performing physical activities beyond his alleged capabilities was obtained. 10. Dr. Pearson had the opportunity to view the surveillance videotape of the claimant performing various physical activities, while Dr. Allen did not view the videotape nor consider such evidence in his testimony. 11. After viewing the claimant on the videotape, Dr. Pearson testified that the claimant fully recovered from the work injury as of July 24,1994. 12. Dr. Allen opined that the claimant suffered from chronic back pain as a result of the work-related injury and that the claimant could not perform his pre-injury job. 13. The expert medical testimony of Dr. Pearson is found to be competent, credible and worthy of belief and is adopted in its entirety. 14. The testimony of Dr. Allen, to the extent that it does not conflict with the testimony of Dr. Pearson, is found to be competent, credible and worthy of belief. 15. The testimony of the claimant and the claimant’s wife is found to be credible insofar as it relates to the initial injury, and to the extent that it does not conflict with the testimony of Dr. Pearson. 16. Otherwise, the testimony of the claimant is found to be incredible and not worthy of belief. 17. The Court finds that the claimant fully recovered from the work injury of January 19,1990 as of July 24,1994. (WCJ’s decision, p. 3). Claimant appealed to the Board contending: (1) that the WCJ’s findings are not supported by substantial evidence in that Dr. Pearson’s testimony is not competent and is equivocal, and (2) that the WCJ failed to issue a reasoned decision pursuant to Section 422 of the Worker’s Compensation Act (Act).3 However, after review the Board affirmed. Claimant now appeals to this Court,4 raising the same issues he raised before the Board. Specifically, with regard to the first issue, Claimant contends that Dr. Pearson’s testimony does not support a termination in that he opined that Claimant could return to work but with restrictions. Claimant points to Dr. Pearson’s acknowledgment that Claimant may have ongoing problems and that even after viewing the surveillance film he was giving Claimant the benefit of the doubt [1088] that Claimant had continuing pain. Claimant emphasizes that at no time did Dr. Pearson testify that Claimant was fully recovered and could return to work without restrictions. We are cognizant of the fact that the WCJ failed to summarize any of the testimony that was provided to him, making appellate review of this case most difficult. However, consideration of the first issue raised by Claimant is possible because a determination of whether a medical expert’s testimony is equivocal is a question of law, fully reviewable by this Court. Cordero v. Workmen’s Compensation Appeal Board (H.M. Stauffer & Sons, Inc.), 664 A.2d 1106 (Pa.Cmwlth.1995), petition for allowance of appeal denied, 543 Pa. 732, 673 A.2d 337 (1996). We further note that the medical witness’ entire testimony must be reviewed and taken as a whole. Id. Moreover, a surveillance film may be a basis for the grant of a termination petition only so long as it is corroborated by competent medical testimony. Clemente-Volpe v. Workmen’s Compensation Appeal Board (Westinghouse Air Brake Division), 154 Pa.Cmwlth. 594, 624 A.2d 666 (Pa.Cmwlth.1993), petition for allowance of appeal denied, 536 Pa. 632, 637 A.2d 292 (1993). Because the issue here concerns a medical expert’s testimony and a claimant’s complaints of pain, Claimant relies on Udvari v. Workmen’s Compensation Appeal Board (USAir, Inc.), 550 Pa. 319, 327, 705 A.2d 1290, 1293 (1997), wherein the Supreme Court stated: We must keep in mind that the employer bears the burden of proof in a termination proceeding to establish that the work injury has ceased. In a case where the claimant complains of continued pain, this burden 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 they 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. (Footnote omitted.) Although much of the Udvari opinion concerns whether or not the physician’s acknowledgment of the claimant’s pain would defeat a termination petition, that is not the situation presently before this Court. Here, Dr. Pearson testified that although he found no objective medical findings to substantiate Claimant’s complaints of pain and despite his opinion after viewing the film that Claimant was a malingerer, the doctor testified that he was giving Claimant the benefit of the doubt and imposing restrictions on Claimant’s work activities. Our review of Dr. Pearson’s testimony reveals that this is clearly the thrust of the doctor’s testimony taken as a whole. Therefore, under Cordero and Udvari, we conclude that Dr. Pearson’s testimony cannot support a termination of benefits. Regardless of the fact that the WCJ did not credit Claimant’s testimony concerning pain, Employer is the burdened party in a termination and its medical expert did not testify that Claimant had fully recovered and could return to work without restrictions. For the reasons stated above, we reverse the Board’s order.5 ORDER NOW, November 23,1998, the order of the Workers’ Compensation Appeal Board, at No. A96-4319, dated April 9, 1998, is reversed. Footnotes [1] The WCJ's finding of fact no. 9 incorrectly indicates an examination date of July 23, 1994. [2] In finding of fact no. 6, the WCJ indicated that Dr. Allen was a neurologist. [3] Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834. [4] Our scope of review in a workers' compensation appeal is limited to determining whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the administrative Agency Law, 2 Pa.C.S. § 704. Russell v. Workmen's Compensation Appeal Board (Volkswagen of America), 121 Pa.Cmwlth. 436, 550 A.2d 1364 (Pa.Cmwlth.1988). [5] Having held that the Board's order should be reversed based upon the Cordero and Udvari decisions, we need not reach Claimant's second issue.