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JAB ENTERPRISES v. WORKMEN'S COMPENSATION APPEAL BOARD (HAEHN) (01/23/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 23, 1984.

JAB ENTERPRISES, INC., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (HAEHN), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Shirley A. Haehn v. JAB Enterprises, Inc., No. A-82305.

COUNSEL

Harry K. Thomas, with him Ronald W. Folino, Knox, Graham, McLaughlin, Gornall and Sennett, Inc., for petitioner.

Robert J. Felton, Jack, Kookogey & Felton, for respondent, Shirley A. Haehn.

Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 79 Pa. Commw. Page 639]

JAB Enterprises, Inc. (Petitioner) seeks review of the decision of the Workmen's Compensation Appeal Board (Board) which reversed a referee's order which suspended disability benefits to Shirley A. Haehn (Employee).

[ 79 Pa. Commw. Page 640]

On August 22, 1978, Employee sustained injuries to her right arm, ribs and shoulder during the course of her employment, and began receiving total disability compensation under a Notice of Compensation Payable*fn1 issued by Petitioner. On October 8, 1979, Petitioner filed a Petition for Termination of Compensation*fn2 with the Bureau of Worker's Compensation alleging that Employee had fully recovered from her injury and was able to return to her employment. After a hearing, the referee suspended compensation, finding that Employee was capable of light work and that such work was currently available. Employee appealed to the Board, which reversed the referee's suspension of compensation and dismissed the Petition for Termination of Compensation, thus reinstating compensation benefits to the Employee. Petitioner now appeals from the Board's order of reversal.

Where the party with the burden of proof has prevailed before the referee and the Board has taken no additional evidence, this Court's scope of review is limited to a determination of whether an error of law was committed, or whether any findings of fact necessary to support the adjudication are not supported by substantial evidence. Elliot v. Workmen's Compensation Appeal Board (C.S. Engineers, Inc.), 72 Pa. Commonwealth Ct. 195, 455 A.2d 1299 (1983). In a petition to terminate or modify compensation, the burden is upon the employer to establish that disability has ended or has been reduced and that (1) work is available to claimant and (2) claimant is capable of doing such work. Coastal Tank Lines, Inc. v. Workmen's Compensation Appeal Board (John H. Swick),

[ 79 Pa. Commw. Page 64172]

Pa. Commonwealth Ct. 308, 457 A.2d 149 (1983); State Products Corp. v. Workmen's Compensation Appeal Board, 61 Pa. Commonwealth Ct. 366, 434 A.2d 207 (1981).

After a careful review of the evidence presented before the referee in this case, we are constrained to agree with the Board that there was no evidence which would support the finding that Employee had recovered from her disability and was capable of performing work.

The only medical evidence in this case was supplied by Dr. E. Larry Hanson, Employee's treating physician, who testified that Employee was unable to use her right arm as a result of severe pain which she had been experiencing. Dr. Hanson indicated that treatment undertaken to alleviate the pain, which included ribresection surgery and various medications, has proved to be unsuccessful. Throughout his testimony, Dr. Hanson consistently and unequivocally stated that Employee's condition has never improved, and that she still complains of pain in her shoulder and arm.

[ 79 Pa. Commw. Page 642]

In spite of this testimony, the referee based his finding on Dr. Hanson's statement that his examinations revealed no objective cause of Employee's pain, and that, in his opinion, Employee could return to work whenever she felt she was ready. Initially we note that the lack of an objective basis for pain does not establish that the disability has ended or been reduced. We have often held that severe pain, even without evidence of an anatomical cause, is sufficient to support a finding of continued disability. Hygrade Food Products v. Workmen's Compensation Appeal Board, 62 Pa. Commonwealth Ct. 448, 437 A.2d 89 (1981); Penwalt, Stokes Division v. Workmen's Compensation Page 642} Appeal Board, 44 Pa. Commonwealth Ct. 98, 403 A.2d 186 (1979). There is no evidence in this case to suggest that Employee's pain was not real or debilitating to her; the fact that her pain is subjective in nature does not negate the fact that she still suffers from it.*fn3

Further, Dr. Hanson's statements suggesting that Employee could return to work whenever she felt ready cannot be interpreted as his opinion that she was, in fact, capable of returning to work. Indeed, Dr. Hanson consistently refused to offer an opinion as to Employee's capabilities. His statements indicate only that, because of the subjective nature of Employee's pain, she alone could determine when and if her pain had subsided.*fn4 Never was it suggested that Employee had made such a determination or that

[ 79 Pa. Commw. Page 643]

    she was, in fact, able to return to work.*fn5 Employee's own testimony that she continued to experience pain and did not feel able to return to work was never questioned or refuted by the doctor.

Dr. Hanson's testimony failed to provide any evidence which would establish that Employee's disability had improved or that she was capable of returning to work. Therefore, as there is no evidence on the record upon which to support the referee's decision to suspend compensation, the Board's Order reversing the Referee is affirmed.

Order

Now, January 23, 1984, the decision and order of the Workmen's Compensation Appeal Board in the above captioned matter, No. A-82305, is hereby affirmed.

Disposition

Affirmed.


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