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11/19/97 METROPOLITAN AMBULANCE v. WORKERS'

November 19, 1997

METROPOLITAN AMBULANCE, INC., PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (WALKER), RESPONDENT



Appealed From No. A95-4578. State Agency Workers' Compensation Appeal Board.

Before: Honorable Dan Pellegrini, Judge, Honorable James R. Kelley, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Senior Judge Narick.

The opinion of the court was delivered by: Narick

OPINION BY SENIOR JUDGE NARICK

FILED: November 19, 1997

The issue in this appeal is whether there is substantial evidence to support the termination of a claimant's benefits under the Workers' Compensation Act (Act), *fn1 where the employer's medical witness testified that the claimant is physically recovered from his work-related disability but that he may be suffering from a "functional overlay," and where neither the Workers' Compensation Judge (WCJ) nor the Workers' Compensation Appeal Board (Board) specifically addressed the issue of a possible "functional overlay." *fn2

Metropolitan Ambulance, Inc. (Employer) appeals the order of the Board, which held that the WCJ erred in terminating the benefits of Allan Walker (Claimant) because "there is no substantial evidence that supports the WCJ's decision." Because this case appears to turn on the issue of whether Claimant suffers from a work-related, disabling "functional overlay," and because neither the Board nor the WCJ addressed this issue, we vacate the decision of the Board and remand in accordance with this opinion.

Claimant was injured during the course of his employment on April 30, 1987, and total disability benefits were subsequently paid by Employer. On July 5, 1988, Employer filed a termination petition with the Bureau of Workers' Compensation, requesting that Claimant's benefits be terminated on the grounds that he was fully recovered from his work-related injury as of April 12, 1988.

At the hearing before the WCJ, Employer offered the deposition testimony of Leonard Klinghoffer, M.D., who was found by the WCJ to be credible and who testified as follows:

Q. Doctor, based on the history that you obtained in the examination, the test you reviewed, do you have within a reasonable degree of medical certainty an opinion regarding Mr. Allan Walker?

A. Yes.... My examination does not reveal any physical abnormality aside from a curvature of the spine. That condition, the curvature, could very well have made his symptoms after the accident last longer than they would have lasted in someone without a curvature. And on the basis of that curvature I offer the opinion that he might still have some intermittent low back symptoms but I could not explain significant pain or I could not explain symptoms 'almost all the time' and I therefore suspect that there was some degree of superimposed functional overlay that was magnifying his complaints. (Emphasis added.)

Q. Doctor, you are stating that any abnormal findings that you might have listed in your report are totally unrelated to this work related injury.

A. I think that the physical findings are all those of the scoliosis [i.e., a genetic curvature of the spine]. There are no physical findings now that I can relate to the accident two years before I saw him. (Emphasis added.)

In granting Employer's termination petition, the WCJ made the following relevant finding of fact:

25. Based on the evidence, particularly Dr. Klinghoffer's testimony, the Judge finds that the claimant [has] no physical findings ...


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