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April 22, 1997


Appeal from memorandum opinion and order of the Commonwealth Court, dated August 31, 1995, at No. 594 C.D. 1995, affirming in part and reversing in part an order of the Workmen's Compensation Appeal Board, dated February 16, 1995, at No. A94-0236. JUDGE(S) BELOW: WORKMEN'S COMPENSATION APPEAL BOARD - / COMMONWEALTH - MCGINLEY, KELLY, JJ., LORD, S.J.

Before: Flaherty, C.j., Zappala, Cappy, Castille, Nigro, JJ. Madame Justice Newman did not participate in the consideration or decision of this case.

The opinion of the court was delivered by: Flaherty




This is an appeal by allowance from a memorandum decision of the Commonwealth Court which reversed in part an order of the Workmen's Compensation Appeal Board and reinstated an award of total disability benefits and medical expenses for Robert M. Newcomer, appellee.

At issue is the competency of certain expert medical testimony that was relied upon by Newcomer to prove that a workplace accident was the cause of his shoulder disability. Whether the testimony was based on a false medical history is the pivotal question. The factual background of Newcomer's injury and treatment is as follows.

While employed as a truck driver for Ward Trucking Corporation (WTC), Newcomer sustained an injury at work on February 1, 1989. The injury was occasioned by a severe impact to Newcomer's abdomen, which caused a perforated bowel and torn stomach and chest muscles. Newcomer did not return to work until April 17, 1989. He was then assigned to light-duty work loading pallets of light bulbs onto a trailer. Within two days he stopped performing that job on the ground that it was too strenuous. He was assigned to another light-duty job on May 1, 1989. This was an office job that consisted of emptying trash cans, answering telephones, and dispatching. However, claiming that stress associated with office work aggravated his pre-existing peptic ulcer and relying on the advice of his family physician, Newcomer quit working on November 1, 1989.

Newcomer subsequently filed a claim for reinstatement of temporary total disability benefits. He had been paid benefits for temporary total disability from the date of the accident until April 17, 1989. Thereafter he had been receiving partial disability benefits.

In March of 1991, a hearing on the claim for increased benefits commenced. However, during the hearing, WTC offered Newcomer a job scanning bar codes on freight cartons. Newcomer agreed to try the job, so the proceeding adjourned. Around April 1, 1991, Newcomer worked at the job for a couple of shifts but then quit.

In October of 1991, Newcomer was experiencing shoulder discomfort so he consulted an orthopedic surgeon, Dr. John B. O'Donnell. He told Dr. O'Donnell that his shoulder had been injured in the same workplace accident that caused injuries to his stomach and chest. After performing various tests, Dr. O'Donnell diagnosed Newcomer's problem as a torn rotator cuff and degenerative changes caused by osteoarthritis. Surgery was then performed.

Workmen's compensation hearings on the claim for reinstatement of total disability benefits resumed in 1993. It was Newcomer's burden to prove that he was unable to obtain any work within the physical limitations caused by his work-related injury. See Dillon v. Workmen's Compensation Appeal Board (Greenwich Collieries), 536 Pa. 490, 504, 640 A.2d 386, 393 (1994) (burden of proof).

Newcomer introduced deposition testimony given in May of 1991 by his family physician, Dr. George W. Baker, Jr. Dr. Baker, who had treated Newcomer on an ongoing basis for aftereffects of the workplace accident, stated that treatment had been directed at abdominal muscle tears and strains and that Newcomer had not fully recovered from the injury. He confirmed that around November 1, 1989, he had advised Newcomer to discontinue working in an office environment because job stress was aggravating Newcomer's pre-existing ulcer.

In addition, Newcomer introduced deposition testimony given in 1992 by Dr. O'Donnell. Dr. O'Donnell testified that Newcomer should avoid repetitive motions with his right arm and avoid lifting more than fifteen pounds. He further testified that, due to such limitations, Newcomer was unable to work as a truck driver, trailer loader, or scanner.

Significantly, Dr. O'Donnell stated his opinion that the shoulder problem was caused by the workplace accident that occurred on February 1, 1989. He acknowledged that he had not reviewed any of the hospital records relating to the original injury. Nor had he been involved in any of the treatment that immediately followed the injury. Instead, he based his opinion solely and expressly on the medical history provided by Newcomer. This was the only expert opinion offered by Newcomer to establish a link between the shoulder disability and the accident.

Predictably, Newcomer testified at the 1993 hearing that he injured his shoulder in the workplace accident and that he continued to be affected by disability and discomfort that were not fully rectified by the 1991 surgery. He also testified that he quit the job operating a scanner in April of 1991 because wearing the scanner on a strap around his neck and repeatedly moving the scanning ...

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