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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Daniel Pappa, : Petitioner : : v. : No. 1433 C.D. 2004 : Workers' Compensation Appeal Board : Submitted: November 5, 2004 (S & M Trucking, Inc.), : 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 15, 2005 Daniel Pappa (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) affirming the decision of a Workers' Compensation Judge (WCJ) that granted the termination petition filed by S & M Trucking, Inc. (Employer). We affirm. Claimant was employed by Employer as a truck driver. His position involved hauling and delivering household appliances. While unloading refrigerators from a truck on January 30, 1991, Claimant sustained a work-related injury to his back. The parties executed an Agreement for Compensation dated March 19, 1991 that acknowledged the back injury. Thereafter, the parties executed a Supplemental Agreement for Compensation dated September 12, 1991.1 Claimant had an average weekly wage of $421.15 for a total disability compensation rate of $280.77 per week. On November 6, 1998 WCJ David Torrey terminated Claimant's compensation benefits as of November 5, 1997 in connection with a termination petition filed by Employer. The Board affirmed on July 24, 2000. However, in a memorandum opinion, this Court reversed the Board's decision on the basis that the credited testimony of Employer's medical expert, Dr. Campbell, was equivocal and insufficient to support the termination petition. Pappa v. Workers' Compensation Appeal Board (S&M Trucking, Inc.), (Pa. Cmwlth., No. 1948 C.D. 2000, filed March 29, 2001) (Pappa I). Employer filed a subsequent termination petition on October 22, 2001 alleging that Claimant had fully recovered from the 1991 work injury as of October 11, 2001. Claimant filed an answer denying the allegations set forth in the petition. Hearings were conducted before WCJ Robert Steiner on November 20, 2001 and March 13, 2003. Claimant testified that since his work injury, he suffers from low back pain, neck pain shooting down his arm, pain in his left hip reaching down his legs, as well as migraine headaches. He has received physical therapy, x-rays, and pain management in the form of injections and medication. Claimant also admitted that he was involved in a motor vehicle accident in 1998 involving an injury to his neck, for which he had medical treatment. He also underwent surgery for carpal tunnel syndrome unrelated to the work injury. Claimant further testified that he 1 Together, these Agreements recognized that Claimant was disabled from January 31 through February 3, 1991 and from February 20 through March 20, 1991. He again returned to work from March 21 through August 24, 1991 and has not returned to work since that date. 2 has attempted to work part-time jobs without success and that he currently receives social security disability benefits. Claimant also presented the January 20, 2003 telephone deposition testimony of his primary care physician Dr. David A. Kolde, a board-certified family practitioner. Dr. Kolde stated that he first saw Claimant for complaints of back and neck pain on August 10, 2000 and last saw him on February 1, 2002. He opined that Claimant continues to suffer from chronic pain as a result of the work injury, which is treated with pain medication. In support of the termination petition, Employer presented the January 14, 2002 deposition testimony of Dr. Frank T. Vertosick, a board-certified neurosurgeon. He performed an independent medical evaluation (IME) of Claimant on October 11, 2001. Based on a review of Claimant's medical records, Dr. Vertosick noted the following. Claimant's initial post-injury MRI on August 7, 1991 showed a slight right-sided subligamentous disc herniation at L5-S1. However, Claimant's lumbar myelogram one month later was read as normal. The results of an April 1992 EMG of Claimant's legs were also normal. A May 1992 myelogram of Claimant's neck and lower back showed some degenerative changes but no nerve root compression. The results of a subsequent cervical MRI were normal and there was no documentation that Claimant suffered from any post- injury thoracic problems. Dr. Vertosick acknowledged that an April 1994 MRI showed a slight central disc bulge at L5-S1. The notes from Claimant's August 1994 visit to an orthopedic surgeon revealed that he complained of whole body pain without any radiologic basis. Dr. Vertosick testified that during the IME, Claimant related diffuse complaints including neck pain, pain in both arms and legs, numbness in his hands and feet, bowel difficulties and migraine headaches. However, Dr. Vertosick noted that Claimant appeared to be fit and his hands were well-calloused. During the 3 examination, Claimant showed no tenderness or spasm of the spine and his range of motion in the back and neck were within normal ranges, as were his extremity strength and reflexes. Although Dr. Vertosick observed Claimant exhibiting exaggerated pain behaviors such as moaning and walking like a 90 year-old man, he found nothing objectively wrong with him. Based on the medical records and the results of the IME, Dr. Vertosick opined that Claimant had fully recovered from his work-related lower-back injury as of October 11, 2001 and that he could return to his pre-injury job. By a decision circulated on June 9, 2003, the WCJ granted the termination petition. The WCJ found Dr. Vertosick's testimony to be credible, persuasive and convincing. The WCJ specifically rejected all contrary testimony of Claimant and Dr. Kolde. Claimant appealed and the Board affirmed the WCJ's decision. This appeal followed.2 Claimant raises three matters for our review. First, he maintains that the testimony of Employer's medical expert in Pappa I must be given preclusive effect in the instant proceeding on the issue of whether Claimant suffers from a continuing disability related to the work injury. Second, Claimant argues that the testimony of Dr. Vertosick is equivocal and therefore inadequate to support the termination petition. Finally, Claimant contends that the Board should have credited the testimony of Dr. Kolde indicating that Claimant still suffers from chronic pain attributable to the work injury. 2 Our review is limited to determining whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Urban v. Workers' Compensation Appeal Board (Burlington Coat Factory), 763 A.2d 564 (Pa. Cmwlth. 2000). Our role is not to reweigh the evidence or review credibility determinations but rather to determine whether the record, viewed as a whole, supports the WCJ's findings. Bethenergy Mines, Inc. v. Workmen's Compensation Appeal Board (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992). 4 To support a termination petition, the employer bears the burden of proving by substantial evidence that the claimant's disability has ceased or that any current disability arises from a cause unrelated to the work injury. Davis v. Workers' Compensation Appeal Board (Mercy Douglas), 749 A.2d 1033 (Pa. Cmwlth. 2000). Claimant first contends that our decision in Pappa I mandates a finding that Claimant currently suffers from a vocational dysfunction related to the work injury. We disagree. In the prior termination proceeding, Dr. Campbell testified that Claimant had a vocational dysfunction related to a general loss of physical conditioning due to lengthy inactivity unrelated to the work injury. (R.R. 21a) We found that Dr. Campbell failed to specifically attribute this finding to a cause other than the work injury, rendering his testimony equivocal and therefore insufficient to support the Employer's burden. (R.R. 22a) Claimant argues that Dr. Campbell's diagnosis of a vocational dysfunction constitutes preclusive evidence that Claimant continues to suffer from a work injury for purposes of the instant termination petition. In that event, Employer's obligation in this proceeding would be to establish that Claimant's alleged vocational dysfunction has resolved since the initial termination petition or that it arose from a cause unrelated to the work injury. Davis. Issue preclusion, also known as collateral estoppel, forecloses re- litigation of an issue of fact or law in a subsequent action. An issue will not have preclusive effect unless (1) it is identical to the one presented in the later proceeding, (2) there was a final judgment on the merits, (3) the party against whom preclusion is asserted was a party in the prior case and (4), the decision in the prior case was essential to the final judgment. C.D.G., Inc. v. Workers' Compensation Appeal Board (McAllister), 702 A.2d 873 (Pa. Cmwlth. 1997). An employer is not precluded from filing subsequent termination petitions in an 5 attempt to prove that a claimant's disability has resolved. King v. Workmen's Compensation Appeal Board (K-Mart Corp.), 549 Pa. 75, 700 A.2d 431 (1997). Clearly, the issues presented in the two termination petitions are not identical. Pappa I concerned Claimant's condition as of November 5, 1997; the instant case relates to Claimant's condition as of October 11, 2001. Moreover, there was never a final determination by the WCJ, the Board or this Court in the prior proceedings that Claimant actually suffered from a vocational dysfunction, much less that it was related to the work-related back injury acknowledged by the parties. Therefore, we reject Claimant's issue preclusion argument. Next, Claimant maintains that Dr. Vertosick's testimony was equivocal because he was unable to identify Claimant's exact recovery date. Whether medical testimony is equivocal is a question of law fully reviewable by this Court. Giant Eagle, Inc. v. Workers' Compensation Appeal Board (Thomas), 725 A.2d 873 (Pa. Cmwlth. 1999). In conducting such a review, we examine the testimony as a whole, recognizing that a final decision cannot rest on a few words taken out of context. Id. Questions regarding the precise date that a work injury resolved are irrelevant as long as the medical expert's testimony provides substantial evidence to support a finding of full recovery from the work-related injury. Wright v. Workers' Compensation Appeal Board (US Air, Inc.), 717 A.2d 596 (Pa. Cmwlth. 1998). Here, Dr. Vertosick unequivocally testified that Claimant's work injury was completely resolved as of the IME date. Therefore, we find that Dr. Vertosick's inability to state a date certain on which full recovery actually began does not render his testimony equivocal. Id. Claimant further contends that Dr. Vertosick's testimony was equivocal because he was unable to attribute Claimant's complaints of chronic pain to any cause. When a claimant complains of continued pain, an employer's burden is met when its medical expert unequivocally testifies, within a reasonable degree 6 of medical certainty, that the claimant has fully recovered, he can return to work without restrictions, and that there are no objective medical findings to substantiate the claims of pain or connect them to the work injury. Udvari v. Workmen's Compensation Appeal Board (US Air, Inc.), 550 Pa. 319, 705 A.2d 1290 (1997). This is true even where contrary evidence is presented, as long as the WCJ credits the testimony. Id. See also Martell v. Workers' Compensation Appeal Board (Doyle Equip.), 707 A.2d 242 (Pa. Cmwlth. 1998) (credited medical testimony indicating that the claimant has fully recovered and that no objective findings exist to support the claimant's subjective complaints of pain is sufficient to support a termination of benefits). The determination of whether a claimant's subjective complaints of pain are accepted is a question of fact within the sole discretion of the WCJ. Id. In addition, mere reluctance of a medical expert to discount the claimant's subjective complaints of pain does not constitute an admission that the claimant is not fully recovered from a work injury. Laird v. Workmen's Compensation Appeal Board (Michael Curran & Assocs.), 585 A.2d 602 (Pa. Cmwlth. 1991) (termination proper where a WCJ accepted the employer's expert medical testimony that the claimant was fully recovered from the work injury even though the expert stated that he had no reason to question the claimant's subjective complaints of pain). Here, as in Udvari, Dr. Vertosick recognized that Claimant complained of pain during the IME but did not concede that the complaints constituted evidence that Claimant actually suffered from chronic or myofascial pain. Moreover, throughout his testimony, Dr. Vertosick unequivocally maintained on cross-examination that Claimant's subjective complaints were not substantiated by any objective medical evidence, as set forth below: 7 Q. Does [Claimant] have any chronic myofascial neck, back, arm or leg pain? A. I don't know if he does or not, but it would not be related to the 1991 injury. And I did not see any objective evidence of any of that at the time I saw him. Q. If he had chronic myofascial neck, back, arm and leg pain, can you associate it with anything other than the injury of 1991? A. I don't know whether I could attribute it to anything other than the injury. I just don't attribute [it] to the injury of 1991. Q. And you don't even know if he has it? A. I suspect he doesn't. Again, I'm not there to make a diagnosis of 11 years later of what all could have happened in the last 10 or 11 years. I'm stating is it reasonable to assume that this type of injury in a man in his late 20s would still yield this diffuse pain syndrome 11 years later in what is otherwise in the background of basically, essentially negative radiographic studies [?] And I just don't see any such residual. .... Q. So [Claimant] could have chronic myofascial neck, back, arm and leg pain? A. He may or may not, but I would not attribute those to any work injury in 1991. Q. What would you attribute it to? A. I don't know. I mean that's not the point. I don't have to state what else I think caused them in the last 11 years. I only have to state whether I think that they're related to the 1991 injury and I think that they are not. 8 Q. You don't even mention them in your report of October 11, 2000 [sic] that he has any of those things; do you? A. Myofascial? Q. Correct. A. They're really sort of non-specific descriptive diagnoses anyway. I don't know I would apply them to this case. Q. Doctor, you do say that he has complaints of diffuse pain though; correct? A. He has complaints of pain in virtually every part of his body. Q. And you don't know what that's attributable to? A. I don't know what those complaints are attributable to, no, other than I would not attribute them to a residual of an injury 10 or 11 years earlier, no. Q. Does he have those problems? A. I don't know. I don't know whether he does or not. ... I'm just going on the basis of my examination, my review of the records and basic common medical sense. Mainly, that this is not the type of injury, as he described it, that should yield these types of complaints 10 or 11 years later. (R.R. 135a-138a) Contrary to Claimant's assertions, Employer was not required to present evidence indicating that Claimant's subjective complaints of pain were 9 unrelated to the work injury or that they were related to any other cause in order to support the termination petition. Martell. Our review of the record reveals that Dr. Vertosick's credited testimony is not equivocal and that it meets the Udvari standard. Finally, we reject Claimant's argument that the WCJ should have accepted Dr. Kolde's testimony that Claimant continues to suffer from chronic pain attributable to the work injury, thereby requiring Employer to present substantial evidence attributing that pain to a cause unrelated to the work injury. Credibility determinations are within the exclusive province of the WCJ. County of Delaware v. Workers' Compensation Appeal Board (Stallworth), 738 A.2d 527 (Pa. Cmwlth. 1999). Based on the above, we find Dr. Vertosick's testimony to be unequivocal and sufficient to support the termination petition. Accordingly, we affirm the order of the Board. JESS S. JIULIANTE, Senior Judge 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Daniel Pappa, : Petitioner : : v. : No. 1433 C.D. 2004 : Workers' Compensation Appeal Board : (S & M Trucking, Inc.), : Respondent : O R D E R AND NOW, this 15th day of February, 2005, the June 8, 2004 order of the Workers' Compensation Appeal Board is hereby AFFIRMED. JESS S. JIULIANTE, Senior Judge
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