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12/04/97 SACRED HEART HOSPITAL v. WORKERS'

COMMONWEALTH COURT OF PENNSYLVANIA


December 4, 1997

SACRED HEART HOSPITAL, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (MUTIS), RESPONDENT

Appealed From No. A95-1797. State Agency Workers' Compensation Appeal Board.

Before: Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Senior Judge Silvestri. Dissenting Opinion BY Judge Friedman.

The opinion of the court was delivered by: Silvestri

OPINION BY SENIOR JUDGE SILVESTRI

Filed: December 4, 1997

Sacred Heart Hospital (Employer) petitions for review of an opinion and order of the Workers' Compensation Appeal Board (Board) which reversed the decision of the Workers' Compensation Judge (WCJ) and granted the claim and reinstatement petitions of Barbara Mutis (Claimant).

The facts, as found by the WCJ, are as follows.

1. The claimant suffered a back injury in October of 1988 while in the employ of defendant, Sacred Heart Hospital. Claimant returned to work at Sacred Heart Hospital in February of 1990. A Supplemental Agreement was executed reflecting claimant's return to work at no loss of earnings on February 17, 1990.

2. From February 17, 1990 through April 20, 1993 claimant performed her pre-injury duties without restriction and did not experience an increase in pain.

3. On April 21, 1993 claimant experienced back pain when she reached over a bed to pull a patient onto a bed pan.

4. Claimant notified defendant of her injury on April 21, 1993, the date of its occurrence.

5. On January 27, 1994 claimant returned to work at a loss of earnings.

6. The claimant presented no medical testimony in support of her petitions. Following the April 21, 1993 incident at work, the claimant's pain in her back and legs worsened over the course of several months. On September 10, 1993 the claimant began missing work with the defendant.

The WCJ found no obvious causal connection between Claimant's prior injury and the incident occurring on April 21, 1993 and thus, denied the claim and reinstatement petitions on the basis that Claimant failed to produce any medical testimony in support of her petitions.

The Board accepted the findings of the WCJ but determined the WCJ erred in denying the reinstatement petition for Claimant's failure to present medical testimony. The Board concluded that unequivocal medical evidence is not necessary for the Claimant to establish that the original work-related injury continues. Having concluded that Claimant's testimony satisfied her burden of proof, the Board reversed the WCJ and granted the reinstatement petition. This appeal, which involves solely the reinstatement petition, followed. *fn1

On appeal, Employer argues the Board erred in granting the reinstatement petition by misapplying the burden of proof. *fn2 Our scope of review is limited to a determination of whether there has been a violation of constitutional rights, errors of law were committed, or whether necessary findings of fact are supported by substantial evidence. Nevin Trucking v. Workmen's Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa. Commw. 1995).

In order to establish the right to a reinstatement of workers' compensation benefits following a suspension of those benefits, a claimant must demonstrate:

(1) that through no fault of her own her earning power is once again adversely affected by her disability; and

(2) the disability which gave rise to the original claim continues.

Pieper v. Ametek-Thermox Instruments Div., 526 Pa. 25, 584 A.2d 301 (1990). However, in Trumbull v. Workmen's Compensation Appeal Board (Helen Mining Co.), 683 A.2d 342 (Pa. Commw. 1996), we emphasized that a claimant must still prove causation. In Trumbull, following a suspension agreement where the claimant petitioned for reinstatement of benefits, we held that although there is a presumption that the work-related injury of the claimant persists, it is the claimant's burden to affirmatively establish that the work-related injury caused his or her present disability and loss of earning power.

Here, the record reveals that Claimant testified that there was no specific incident which precipitated her back pain in 1993 and that it gradually increased both at work and at home. R.R. 33a-34a, 37a. Claimant testified that she was "getting ready to bend over" when she felt the pain in her back and admitted that there was no specific incident precipitating the back pain and that she did not lose any time from work until September 9, 1993 as she experienced a gradual increase in pain. R.R. 9a, 16a, 33a-34a.

The Claimant's testimony surrounding her back condition in April of 1993 does not establish a causal connection between the 1988 work-related injury and the 1993 disability. This is particularly true when five years had passed since the initial injury. *fn3 Because there was no obvious causal connection, the Board misapplied the burden of proof and erred in reversing the decision of the WCJ.

Accordingly, we reverse the order of the Board and reinstate the decision of the WCJ denying the reinstatement petition of Claimant.

SILVESTRI SILVESTRI, Senior Judge

ORDER

AND NOW, this 4th day of December , 1997, the March 10, 1997 order of the Workers' Compensation Appeal Board is reversed.

DISSENTING OPINION BY JUDGE FRIEDMAN

FILED: December 4, 1997

Here, the majority bases its determination on Trumbull v. Workmen's Compensation Appeal Board (Helen Mining Co.), 683 A.2d 342 (Pa. Commw. 1996), relying on it for the proposition that, to establish a right to a reinstatement of benefits following a suspension, a claimant must prove causation. The majority then examines the testimony provided by Barbara Mutis (Claimant) and concludes that, because it fails to establish a causal connection between her 1988 work-related injury and her 1993 disability, and because that causal connection was not obvious, *fn1 the Workers' Compensation Appeal Board (Board) misapplied the burden of proof and so erred in reversing the WCJ. *fn2 I do not believe that the majority's analysis of the relevant case law is correct, and I respectfully submit that the majority has distorted Claimant's testimony; therefore, I Dissent.

In Trumbull, the claimant sustained a work-related injury in March of 1990, for which he received total disability payments. In November of 1990, the claimant returned to his pre-injury position at his pre-injury wage; the parties then entered into a supplemental agreement suspending the claimant's benefits, thereby recognizing that the claimant still suffered from some residual medical disability at the time he resumed his work duties. The claimant continued in this position until he experienced a loss of earnings when the employer laid him off in January of 1993. When the claimant filed a reinstatement petition, the referee granted reinstatement based on the claimant's lay off and medical residuals, reasoning that, under such circumstances, reinstatement of benefits was automatic absent a showing of job availability by the employer.

The Board reversed, stating that an employer is entitled to a continued suspension of a claimant's benefits when the claimant is capable of returning to his or her time-of-injury job with residual disability even if the employer has not shown job availability. *fn3 On further appeal, we reversed the Board and remanded the case. We concluded that, although the Board's statement was correct, it had failed to complete its analysis by failing to "recognize that an employer still has the burden to establish job availability if the claimant first establishes that his work-related injury has prevented him from returning to his pre-injury position without impairment." Trumbull, 683 A.2d at 347.

In reaching our determination in Trumbull, we first discussed the claimant's burden, stating:

the law is clear that a claimant seeking reinstatement following a suspension of benefits need only establish: (1) that through no fault of his or her own, the claimant's earning power is again adversely affected by the work-related disability, and (2) that the disability which gave rise to the original claim continues. A claimant does not have to re-establish the causal relationship, i.e., job relatedness, of the injury. Pieper v. Ametek-Thermox Instruments Division, 526 Pa. 25, 584 A.2d 301 (1990). And, such a claimant is not required to produce medical evidence to establish continuing disability, but rather, the testimony of the claimant alone is sufficient to support a finding that his or her disability continues. Latta v. Workmen's Compensation Appeal Board (Latrobe Die Casting Co.), 537 Pa. 223, 642 A.2d 1083 (1994).

683 A.2d at 345. (Emphasis in original.)

We then went on to hold that "following a suspension agreement where a claimant petitions for a reinstatement of benefits, although there is a presumption that the work-related injury of the claimant still persists, it is the claimant's burden to affirmatively establish that it is the work-related injury which is causing his or her present disability, i.e., his or her loss of earning power." *fn4 Id. at 346-47. Because, in Trumbull, the WCJ had never considered whether the claimant met his initial burden of proving that it was his work-related injury, and not the lay off, which kept him from returning to his pre-injury job without restrictions, and because the evidence was unclear on this point, we remanded the case for further findings.

I cannot agree that Trumbull offers us any guidance in this case because the crucial issue of "causation," which remained unconsidered in Trumbull, does not even exist here. In Trumbull, in order to satisfy his initial burden of proof under Pieper, *fn5 the claimant needed to affirmatively establish that his work-related injury caused his loss of earnings because, despite his continuing medical impairment, he may have had the ability to return to, or remain at, work without restrictions if his earning power had not been affected by a lay off. In contrast, here, there is no lay off which would give rise to such a question; *fn6 indeed, there is no question that the cause of Claimant's loss of earnings was her work-related injury which prevented her from returning to her normal duties. Claimant testified that she had continuous pain, for which she received medical treatment, from the time of her 1988 injury until the work incident in April 1993. (R.R. at 32a, 36a.) Further, Claimant testified that her continuing pain gradually worsened from the time of the April incident until September 1993, when the severity of the pain finally forced her to leave work. (R.R. at 33a, 37a.) Finally, Claimant's testimony also clearly establishes that she was unable to return to her pre-injury job without restrictions due to the continuing work-related injury. *fn7 (R.R. at 28a-29a, 30a, 37a.)

Expert medical evidence is not necessary for a claimant to establish a continuing work-related injury; rather, once a claimant testifies that his or her prior work-related injury continues, the burden shifts to the employer to prove the contrary. Latta v. Workmen's Compensation Appeal Board (Latrobe Die Casting Co.), 537 Pa. 223, 642 A.2d 1083 (1994). Where, as here, an employer fails to present evidence to the contrary, the claimant's testimony, if believed, is sufficient to support a reinstatement of suspended benefits. Id. Thus, Claimant's testimony alone, if the WCJ accepted that testimony, is sufficient to support her reinstatement petition. Because I believe that the WCJ did credit Claimant's testimony, *fn8 I would affirm the Board's grant of Claimant's reinstatement petition.

ROCHELLE S. FRIEDMAN, JUDGE


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