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decided: March 1, 1988.


Appeal from the order of the Workmen's Compensation Appeal Board, in the case of Norman Burke v. Vital Signs Institute, Inc., and Humetrics Corporation, No. A-90228.


Eugene Mattioni, with him, Francis X. Kelly, Mattioni, Mattioni & Mattioni, Ltd., for petitioner.

Jean M. Heflin, with her, Peter J. Weber, Rawle & Henderson, for respondent, Humetrics Corporation.

Kirk T. Karaszkiewicz, Broderick & Karaszkiewicz, for respondent. Norman Burke.

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

Author: Craig

[ 114 Pa. Commw. Page 193]

Petitioner Vital Signs Institute, Inc. (Vital Signs) and its insurance carrier appeal from a decision of the Workmen's Compensation Appeal Board affirming an order of a referee that directed Vital Signs or its carrier to pay compensation to respondent-intervenor Norman Burke (claimant) and that dismissed the claimant's previous employer, respondent Humetrics Corporation (Humetrics) and its carrier, Aetna Life and Casualty Company (Aetna), from the case. The principal issue before the referee and the board was whether the disabling back injury suffered by the claimant while he was working for Vital Signs was a new injury or a recurrence of an injury he suffered while working for Humetrics.

The issues on this appeal, as framed by Vital Signs, are: (1) whether as a matter of law the claimant presented competent unequivocal medical testimony on causation in view of the ordinary activity in which the claimant was involved when he was injured and in view of his history of back problems and surgery; (2) whether the referee erred by excluding medical records that "impeached claimant's testimony" that a new injury occurred and by excluding evidence relating to the execution of a final receipt signed by the claimant in favor of his previous employer's insurance carrier; (3) whether the referee violated the rules on joinder by failing to consider whether the final receipt in favor of the former employer's carrier should be set aside; and (4) whether the referee capriciously disregarded testimony that the claimant was highly desirable as an employee and that meaningful jobs were available to him despite his disabilities.

The referee found that, on or about November 5, 1981, while working at a Vital Signs office, the claimant reached above his head to pick up two cassettes. While doing so, he felt a sharp pain in his lower back and radiating

[ 114 Pa. Commw. Page 194]

    down his left leg. The claimant reported the incident to his manager and left work within an hour of the accident. He has not returned. Dr. Segin, the claimant's family physician, referred him to Dr. Paul Lin, a neurologist. Dr. Lin performed surgery on the claimant's spine while the claimant was hospitalized for a period of ten days beginning December 7, 1981.

On November 23, 1976, when he was working for Humetrics, the claimant had suffered an injury that resulted in surgery in December of 1976 to remove two discs from his back. The claimant's testimony indicates that he did not return to work for Humetrics after that operation, and he resigned his position with Humetrics in February of 1977. Later in 1977 the claimant began working for Vital Signs. He signed a final receipt of compensation in favor of Humetrics and Aetna for the period of his disability following the 1976 operation. The final receipt stated that he returned to work without loss of earning power on June 7, 1977.

The claimant underwent a second operation in November of 1977. His testimony indicates that his operation was for bladder and prostate problems, and that at that time he also received injections in his spine that relieved persistent pain and numbness he had been experiencing since the 1976 operation. The referee found that the claimant returned to work upon his release from the hospital in 1977 and that he worked without interruption from that time until November 5, 1981.

1. Medical Testimony Regarding Cause of Injury

In Lewis v. Workmen's Compensation Appeal Board (Pittsburgh Board of Education), 508 Pa. 360, 498 A.2d 800 (1985), a case concerning an application by a high school gym teacher, with a history of neck problems traceable to an old football injury, for benefits for a neck injury requiring surgery that he allegedly sustained

[ 114 Pa. Commw. Page 195]

    while moving heavy gym equipment at work, the Pennsylvania Supreme Court summarized the law regarding a claimant's burden in a workers' compensation case:

In workmen's compensation cases, the claimant has the burden of proving a causal relationship between a work-related incident and his alleged disability. Monahan v. Seeds & Durham, 336 Pa. 67, 6 A.2d 889 (1939); Miller v. Spring-field Township Highway Department, 202 Pa. Super. 616, 198 A.2d 399 (1964). Where there is no obvious causal connection between an injury and the alleged cause, that connection must be established by unequivocal medical testimony. Zander v. Workmen's Compensation Appeal Board, 68 Pa. Commw. 412, 449 A.2d 784 (1982). Where medical testimony is necessary to establish a causal connection, the medical witness must testify, not that the injury or condition might have or possibly came from the assigned cause, but that in his professional opinion the result in question did come from the assigned cause. Menarde v. Philadelphia Transportation Co., 376 Pa. 497, 103 A.2d 681 (1954). Medical evidence which is less than positive or which is based upon possibilities may not constitute legally competent evidence for the purpose of establishing the causal relationship. Bisesi v. Workmen's Compensation Appeal Board, 61 Pa. Commw. 260, 433 A.2d 592 (1981).

Lewis, 508 Pa. at 365-66, 498 A.2d at 802.

The court then proceeded to analyze, as a matter of law, whether the claimant's medical testimony on causation was equivocal, thereby implicitly indicating that there was no "obvious causal connection" between the injury and a work-related incident, despite the strenuous activity in which the claimant was involved and the

[ 114 Pa. Commw. Page 196]

    severity and immediacy of his symptoms. The court's approach may well have been influenced by the claimant's history of neck problems and surgery.

Thus, our causation analysis on review actually involves three steps: (1) whether as a matter of law there was an "obvious causal connection" between a work-related incident and an injury; (2) if there was not, whether as a matter of law the claimant presented competent, unequivocal medical testimony of causation; and (3) if he did, whether there was substantial evidence of record to support the factual determination of causation.*fn1

In view of the Supreme Court's treatment of the circumstances present in Lewis, involving greater physical strain than the circumstances here, we cannot say that there was an obvious causal connection between this claimant's injury and the work-related incident, given his history of back problems. The claimant implicitly did not contest this point because he attempted to present unequivocal medical evidence of causation.

In a case where a pre-existing ailment or condition is a factor, the principal point toward which the medical testimony is directed is whether the disability in question is the result of a new injury or is a recurrence of disability as a result of a previous injury. The fact that an employee was afflicted with a pre-existing physical defect or condition that rendered him or her more susceptible to injury than an entirely normal person will

[ 114 Pa. Commw. Page 197]

    not bar recovery; it is sufficient if the later injury materially contributed to the disability, rather than the disability's resulting from the natural progress of the pre-existing condition. Halaski v. Hilton Hotel, 487 Pa. 313, 409 A.2d 367 (1979). Further, the law is clear that, if the current disability results from an "aggravation" of the previous injury, rather than from a recurrence attributable to the natural progress of the pre-existing condition, there has been a new injury, and the carrier who was insuring the employer when the aggravation occurred ...

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