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BARRY E. WILLIAMS v. WORKMEN'S COMPENSATION APPEAL BOARD (MONTGOMERY WARD) (08/04/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 4, 1989.

BARRY E. WILLIAMS, PETITIONER,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (MONTGOMERY WARD), RESPONDENT

PETITIONER FOR REVIEW (WORKMEN'S COMPENSATION).

COUNSEL

Thomas G. Parisi, O'Pake, Malsnee & Orwig, P.C., Reading, for petitioner.

David L. Pennington, Roger B. Wood, Harvey, Pennington, Herting & Renneisen, Ltd., Philadelphia, for respondent.

Doyle and McGinley, JJ., and Barbieri, Senior Judge.

Author: Barbieri

[ 127 Pa. Commw. Page 590]

Barry E. Williams (Claimant) petitions for review of the order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision granting Montgomery Ward's (Employer) petition to terminate compensation benefits pursuant to The Workmen's Compensation Act*fn1 (Act). Issues presented for review pertain to whether the termination of Claimant's compensation benefits as of July 15, 1982 was supported by substantial competent evidence. We affirm.

[ 127 Pa. Commw. Page 591]

Claimant, a tractor-trailer driver, sustained a work-related back injury on October 28, 1981 when he slipped and fell while unloading a truck. Compensation benefits were paid pursuant to a Notice of Compensation Payable from December 8, 1981 until Employer ceased payments on July 15, 1982. Employer's termination petition followed on September 27, 1982 and was based upon a physician's affidavit of recovery dated September 13, 1982. Therein, Employer alleged that Claimant's disability had ceased as of July 15, 1982.*fn2

After several hearings, including a special supersedeas hearing,*fn3 the referee accepted as credible the testimony of Employer's expert witness, Dr. Manee Suwan, and granted Employer's termination petition on the ground that Claimant's work-related disability ceased as of July 15,

[ 127 Pa. Commw. Page 5921982]

. On appeal, the Board affirmed the referee's decision, whereupon Claimant petitioned this Court for review.*fn4

Claimant initially challenges whether Employer sustained its burden of proving that all of his work-related disability ceased as of July 15, 1982. Claimant contends that Dr. Suwan's testimony establishes that he had not fully recovered from his work-related disability until September 13, 1982. In support, Claimant asserts that Dr. Suwan implicitly admitted that he had not fully recovered from his work-related disability as of July 1982 since she continued to prescribe anti-inflammatory medication to him; and that Dr. Suwan's opinion regarding his ability to return to work in July 1982 was not rendered within a reasonable degree of medical certainty nor did she state whether he was fully recovered as of that time.

Dr. Suwan testified in relevant part on direct examination as follows:

A: I saw Mr. Williams, again, July 8, 1982.

Q: What were your findings at that time, Doctor?

A: The physical examination revealed lumbosacral motion is not restricted. Straight leg raising is negative. Deep tendon reflex are normal. Gait is unremarkable.

Q: At that time, Doctor, did you feel Mr. Williams needed additional physical therapy?

A: I recommended that physical therapy be discontinued and suggested that he take Motrin four times a day as needed when his back pain is increased.

[ 127 Pa. Commw. Page 593]

Q: Did you anticipate seeing Mr. Williams after this date? A: I stated: 'He will be discharged from our care.'

Q: Did you have an opinion at that time as to whether or not Mr. Williams could return to his occupation?

A: I stated he may return to regular work a week from today -- from July 8.

Q: You next saw Mr. Williams on September 13, 1982; is that correct? A: Yes.

Q: Doctor, . . . do you have any opinion within a reasonable degree of medical certainty as to whether or not, as of September 13, 1982, Mr. Williams was fully recovered from his injury of October 1981?

A: In my opinion, when I examined him on September 13, '82, I feel he was fully recovered.

Dr. Suwan's April 27, 1983 Deposition, pp. 8-10, 12.

This testimony establishes that Dr. Suwan did not instruct Claimant to regularly take the prescribed anti-in-flammatory medication for his pain. Rather, she prescribed the medication on an "as needed" basis with Claimant as sole judge of his pain, if any, and its severity. Mere reluctance by a physician to discount a claimant's unconfirmed subjective complaints is not tantamount to an implicit admission that the claimant is not fully recovered from a work-related disability. Not every statement made by a physician need be expressed with absolute certainty and without reservation. See Philadelphia College of Osteopathic Medicine v. Workmen's Compensation Appeal Board (Lucas), 77 Pa. Commonwealth Ct. 202, 465 A.2d 132 (1983).

Nor is Dr. Suwan's opinion that Claimant could return to regular work on July 15, 1982 rendered incompetent by her acknowledgment that Claimant may actually suffer pain inasmuch as her opinion was supported by her unequivocal

[ 127 Pa. Commw. Page 594]

    medical findings. See McCarter v. Workmen's Compensation Appeal Board (Boeing Vertol Co.), 94 Pa. Commonwealth Ct. 261, 503 A.2d 990 (1986). Moreover, Dr. Suwan did not impose any restrictions upon Claimant's ability to return to work on July 15, 1982, and, in fact, discontinued his physical therapy and discharged him after the July 8, 1982 medical examination.

Similarly, Dr. Suwan's omission of the phrases, "within a reasonable degree of medical certainty" and "fully recovered", in testifying as to her opinion of Claimant's condition on July 8, 1982 does not render her testimony incompetent, although such omissions could affect the weight of the testimony. Medical experts are not required to apply legal standards to the facts contained in their testimony. See Bernardini v. Workmen's Compensation Appeal Board (Italian Marble Mosaic Co.), 97 Pa. Commonwealth Ct. 514, 510 A.2d 382 (1986). After providing a foundation, medical experts need only testify that they believe or think that the facts exist. See Philadelphia College of Osteopathic Medicine. A medical opinion unequivocally rendered is thus sufficient without resort to "magic words". See Sheetz v. Workmen's Compensation Appeal Board (Firestone Tire & Rubber Co.), 104 Pa. Commonwealth Ct. 411, 522 A.2d 146 (1987).

Here, Dr. Suwan's opinion was clearly unequivocal as were her medical findings upon which it was founded. Moreover, Dr. Suwan's affidavit of recovery certified that Claimant had fully recovered from his October 1981 work-related injury and was able to resume, without limitation, his previous occupation of truck driver on July 15, 1982. Accordingly, the omissions in Dr. Suwan's testimony do not render her testimony incompetent nor the referee's determination unsupported by substantial competent evidence.

Claimant's final challenge is based upon an alleged due process violation. Claimant argues that his due process rights were violated by Employer's unilateral cessation of compensation benefits on July 15, 1982, thus entitling

[ 127 Pa. Commw. Page 595]

    him to benefits from July 15, 1982 to August 22, 1984, the date of the referee's special supersedeas decision. Claimant alternatively argues that he should have received benefits from July 15, 1982 to September 13, 1982, the effective date of the referee's special supersedeas. Unfortunately, Claimant's failure to raise these issues on appeal to the Board effected a waiver of the right to do so on review to this Court. Pa.R.A.P. 1551; Dehus v. Unemployment Compensation Board of Review, 118 Pa. Commonwealth Ct. 344, 545 A.2d 434 (1988) (denial of due process is a waivable issue); Gallick v. Workmen's Compensation Appeal Board (Department of Environmental Resources, Bureau of Human Resources Mgmt.), 108 Pa. Commonwealth Ct. 617, 530 A.2d 945 (1987).*fn5

Because the referee's decision is supported by substantial competent evidence and no error of law was committed, the order of the Board must be affirmed.*fn6

[ 127 Pa. Commw. Page 596]

ORDER

AND NOW, this 4th day of August, 1989, the order of the Workmen's Compensation Appeal Board is affirmed.


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