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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
A & M Texaco,
:

Petitioner

:

:

v.

: No. 1021 C.D. 2004

:
Workers' Compensation
: Submitted: November 24, 2004
Appeal Board (McVoy),
:

Respondent

:
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE
DORIS
A.
SMITH-RIBNER, Judge

HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE JIULIANTE

FILED: February 8, 2005

A & M Texaco (Employer) petitions for review of the May 10, 2004
order of the Workers' Compensation Appeal Board (Board) that affirmed as
modified the order of the Workers' Compensation Judge (WCJ) granting
Employer's termination petition and terminating the workers' compensation
benefits of Robert H. McVoy (Claimant).1 Employer contends that the Board erred
in modifying the effective date of the termination of benefits from September 26,
2000 to March 15, 2002 inasmuch as the WCJ's finding that Claimant had fully
recovered as of September 26, 2000 is supported by substantial evidence. For the
reasons that follow, we affirm.

On April 14, 1998, Employer issued a notice of temporary
compensation payable (NTCP) awarding Claimant benefits for a January 18, 1998

1 Claimant did not file a brief before this Court.

lumbar sprain. On September 26, 2002, the parties stipulated that the NTCP had
converted into a notice of compensation payable.

In the interim, Employer had filed a petition for modification,
suspension or termination alleging that as of July 7, 2000, Claimant had fully
recovered from his work injury and was able to return and/or had returned to his
pre-injury job. After several postponed or continued hearings, a September 26,
2002 hearing was held at which Employer stipulated that it had not filed a notice of
ability to return to work. As a result, the WCJ determined that Employer had not
met its burden of proof with respect to either a modification or suspension.

With regard to Employer's request for a termination, the WCJ
accepted as credible the testimony of Employer's medical witnesses, Dr. William
J. Beutler, a board-certified neurosurgeon, and Dr. Jason J. Litton, a board-certified
orthopedic surgeon. Dr. Beutler examined Claimant on March 15, 2002 for
purposes of an independent medical evaluation (IME) and testified that Claimant
had an objectively normal examination with subjective weakness of all muscle
groups in his right leg. Dr. Beutler opined that Claimant has a post work-injury
fracture of the L-4 vertebrae which was unrelated to his work injury. The doctor
further opined that Claimant's lumbar fusion had healed and that he did not require
any further surgery.

Dr. Beutler also reviewed a surveillance videotape of Claimant
performing activities at a gas station service garage on September 26, 2000. These
activities included picking up two large tires, carrying them into the garage and
changing the tires on his vehicle. Based on the videotape, Dr. Beutler opined that
Claimant displayed no limitations or disability.

Dr. Litton testified that he performed lumbar fusion surgery on
Claimant on July 20, 1998 and that on November 11, 1998 the doctor felt that
Claimant had improved enough to return to his pre-injury job without restrictions.
2

Dr. Litton later saw Claimant in February 1999. During that visit, Claimant
complained of increased low back pain and right leg pain. At that point, Dr. Litton
did not feel that Claimant could perform his pre-injury job. Dr. Litton then
referred Claimant to his partner, Dr. Mark Grubb, in order to get his opinion of
Claimant's condition.

In addition, Dr. Litton reviewed Dr. Beutler's IME and opined that it
indicated that Claimant's examination was normal from an objective standpoint.
Dr. Litton also reviewed the videotape and opined that as of September 26, 2000,
Claimant had fully recovered from his work injury and lumbar fusion surgery. The
doctor further opined that as of March 15, 2002, the date of the IME, Claimant was
able to perform his pre-injury job.

Based on the testimony and opinions of Drs. Beutler and Litton, the
WCJ found that Claimant had fully recovered from his work injury as of
September 26, 2000, the date of the surveillance tape.2 Consequently, the WCJ
granted Employer's termination petition effective that date.

On appeal, the Board determined that because the only evidence
supporting a termination of Claimant's benefits as of September 26, 2000 was the
surveillance videotape, there was not substantial evidence to support a termination
as of that date. Citing Thompson v. Workmen's Compensation Appeal Board
(Bethlehem Steel Corp., Freight Div.), 683 A.2d 1315 (Pa. Cmwlth. 1996), the
Board stated that "[s]urveillance films, standing alone, are inadequate to sustain the
evidentiary burden of showing that a claimant's disability has been reduced."
Board's Decision at 8; R.R. 220a.

2 The WCJ rejected as not credible the opinion of Claimant's medical expert, Dr.
Christopher S. Cannon. He opined that Claimant had not fully recovered from his work injury.
3

The Board then modified the effective date of the termination to
March 15, 2002, the date of Dr. Beutler's IME. The Board noted that Dr. Beutler
had opined that there were no objective findings upon examination to support
Claimant's complaints of pain and that Dr. Litton had reviewed the IME and
testified that Claimant had fully recovered from his work injury as of the date of
the IME.

As a result, the Board affirmed the WCJ's order as modified.
Employer's petition for review to this Court followed. On review, we are limited
to determining whether the necessary findings of fact are supported by substantial
evidence, whether errors of law were made, or whether constitutional rights were
violated. Morris Painting, Inc. v. Workers' Compensation Appeal Board
(Piotrowski), 814 A.2d 879 (Pa. Cmwlth. 2003).

Employer contends that the WCJ's order should be reinstated in that
there is substantial evidence to support the WCJ's determination that Claimant had
fully recovered as of September 26, 2000. Specifically, Employer contends that
the opinions of Drs. Beutler and Litton, that Claimant had fully recovered from his
work injury as of the date of the surveillance videotape, are legally sufficient to
support a termination effective September 26, 2000. Employer further asserts that
the doctors' opinions were not based on the videotape alone, but also on their
examinations of Claimant and their review of his medical records.

Moreover, Employer maintains that Thompson is distinguishable on
the basis that the surveillance films in that case were found to be inadmissible.
Employer points out that in the present case, there was no evidentiary dispute as to
the admissibility of the surveillance videotape. Therefore, Employer claims that
the Board erred in changing the termination date.

"It is well established that an employer seeking to terminate workers'
compensation benefits bears the burden of proving by substantial evidence either
4

that the employee's disability has ceased, or that any current disability arises from
a cause unrelated to the employee's work injury." Parker v. Workers'
Compensation Appeal Board (Dock Terrace Nursing Home), 729 A.2d 102, 104
(Pa. Cmwlth. 1999). The employer "must show that any continued disability is the
result of an independent cause or the lack of a causal connection between the
continued disability and the original compensable injury." Id. "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 there are no objective medical findings which either
substantiate the claims of pain or connect them to a work injury." Udvari v.
Workmen's Compensation Appeal Board (USAir, Inc.), 550 Pa. 319, 327, 705 A.2d
1290, 1293 (1997).
In
Clemente-Volpe v. Workmen's Compensation Appeal Board
Westinghouse Air Brake Div.), 624 A.2d 666 (Pa. Cmwlth. 1993), we noted that
surveillance films are admissible and if corroborated by competent medical
testimony, they may be sufficient evidence to support a termination. In the present
case, however, there simply was no corroborating objective medical evidence
indicating that Claimant had fully recovered from his work injury as of September
26, 2000.

As the Board noted, there were no medical examinations of Claimant
on or before September 26, 2000 which either Dr. Beutler or Dr. Litton cited as
providing objective medical evidence supporting a finding that Claimant had fully
recovered as of that date. As such, there was no objective medical evidence to
corroborate the surveillance videotape.

As the record reflects, Dr. Beutler examined Claimant on March 15,
2002 for purposes of an IME and took his history. Dr. Beutler never examined
5

Claimant before that date. The doctor testified that his examination of Claimant
was normal and that Clamant had no objective basis for his complaints of pain.

Furthermore, although Dr. Litton reviewed Dr. Beutler's March 15,
2002 IME report and agreed with Dr. Beutler's opinion that the IME revealed that
Claimant had no objective findings to support his complaints of pain, Dr. Litton's
opinion, that Claimant had fully recovered as of September 26, 2000 as indicated
by the activities he was performing on the surveillance videotape, is also
uncorroborated by objective medical findings.

Employer, nonetheless, cites Fye v. Workers' Compensation Appeal
Board (Super Moche), 762 A.2d 428 (Pa. Cmwlth. 2000), for the proposition that a
medical expert may rely on the physical abilities of a claimant depicted in a
surveillance videotape as a basis for an opinion that the claimant has fully
recovered from his work injury for purposes of a termination petition. In Fye,
however, the claimant challenged the Board's order affirming a WCJ's grant of the
employer's petition for review of utilization review on the ground that the
employer's medical expert's reports were contradictory and thus equivocal.
In
Fye, the employer introduced a May 2, 1996 report from its
medical expert that diagnosed the claimant's work-related condition as cervical
radiculitis in the right upper extremity and residual chronic neck strain. The
employer also hired an investigator who videotaped the claimant's activities on
June 12, 1996. In a July 17, 1996 report, the doctor stated that after viewing the
claimant's activities on the videotape, he revised his medical opinion to reflect his
belief that the claimant's cervical radiculitis and residual neck strain were not
disabling. In that report, the doctor stated that he did not recommend surgery and
did not believe that the claimant was subject to any restrictions on working.
In
Fye, we reasoned that the doctor's second report did not render his
first report equivocal because the second report was the only one to contain any
6

recommendation as to surgery. In other words, the doctor's July 17, 1996 report
not recommending surgery did not contradict his May 2, 1996 report which merely
diagnosed the claimant's condition.

Furthermore, we rejected the claimant's challenge to the videotape,
i.e., that it was improperly edited by the employer, on the ground it was not raised
before the WCJ and thus not preserved for appeal. As such, we affirmed the
Board's determination that the WCJ did not err in concluding that the claimant's
July 12, 1996 surgery was neither reasonable nor necessary.

We do not believe that our rationale in Fye is applicable in the present
case, which involves a termination petition. Because Claimant established that he
was disabled as a result of a work-related injury, the burden shifted to Employer to
establish by competent medical evidence that Claimant's condition has improved
to the point that his work-related disability had ceased. Udvari; Parker. As
discussed above, there are no objective medical findings to corroborate the
doctors' opinions that the videotape showed that Claimant's work-related injury
resolved as of September 26, 2000. Consequently, the WCJ erred in reaching that
conclusion. Clementine-Volpe.

Therefore, insomuch as the WCJ's determination that Employer was
entitled to a termination of benefits as of September 26, 2000 was not supported by
substantial evidence, i.e., objective medical findings, we conclude that the Board
did not err in modifying the effective date of termination to March 15, 2002, the
date of Dr. Beutler's examination. Accordingly, we affirm.

JESS S. JIULIANTE, Senior Judge

7

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
A & M Texaco,
:

Petitioner

:

:

v.

: No. 1021 C.D. 2004

:
Workers' Compensation
:
Appeal Board (McVoy),
:

Respondent

:

O R D E R

AND NOW, this 8th day of February, 2005, the May 10, 2004 order of
the Workers' Compensation Appeal Board is AFFIRMED.

JESS S. JIULIANTE, Senior Judge

Document Outline