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12/24/97 SUSAN UDVARI v. WORKMEN'S COMPENSATION

December 24, 1997

SUSAN UDVARI,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (USAIR, INC.), APPEAL OF: USAIR, INC.



Appeal from the Order of the Commonwealth Court dated October 10, 1995, at No. 233 C.D. 95, vacating the Order of the Workmen's Compensation Appeal Board, dated December 23, 1994, at No. A94-2379. Justice Zappala. Madame Justice Newman did not participate in the consideration or decision of this case. Mr. Justice Cappy files a Concurring Opinion in which Mr. Justice Nigro joins.

The opinion of the court was delivered by: Zappala

JUSTICE ZAPPALA

DECIDED:DECEMBER 24, 1997

We must determine whether there is substantial evidence to support the termination of the claimant's workers' compensation benefits. The Commonwealth Court held that there is not. We reverse.

Appellee, Susan Udvari, was employed as a lead flight attendant by Appellant, USAir Inc. On January 15, 1992, Udvari sustained neck and shoulder injuries when an aircraft in which she was working ran into a snow bank while attempting to depart. Pursuant to a notice of compensation payable, Udvari received workers' compensation benefits. On February 8, 1993, USAir filed a petition for termination, alleging that all disability associated with the work injury had ceased as of February 4, 1993. Udvari returned to work on May 1, 1993.

Following several hearings where both parties presented expert medical testimony, the workers' compensation Judge (WCJ) granted the termination petition. It credited the testimony of USAir's expert witness, Paul S. Lieber, M.D., who testified that as of February 3, 1993, Udvari had completely recovered from her work injury and no longer required treatment. On appeal, the Workmen's Compensation Appeal Board affirmed, finding that Dr. Lieber's testimony constituted substantial evidence to support the termination of benefits.

The Commonwealth Court reversed. Udvari v. Workmen's Compensation Appeal Bd., 667 A.2d 433 (Pa. Commw. 1995). It noted that Dr. Lieber "clearly, unequivocally and consistently testified that he diagnosed Udvari with chronic muscular strain and multiple contusions from the work injury, that these were completely resolved as of the time of his examination, that Udvari was completely healed and that there was no reason for 'any further medical, chiropractic, physical therapy or diagnostic tests.'" Id. at 434 (citation omitted). However, the court held that because Dr. Lieber diagnosed Udvari with "symptom magnification syndrome" and testified regarding Udvari's continuing pain, the termination of benefits was improper. Instead, a suspension of benefits was appropriate because the WCJ credited Dr. Lieber's testimony that Udvari was able to return to work despite her residual pain and symptom magnification syndrome.

The scope of appellate review in a workers' compensation proceeding is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact are supported by substantial evidence. Gumro v. Workmen's Compensation Appeal Board, 533 Pa. 461, 626 A.2d 94 (1993). Substantial evidence has been defined as "such relevant evidence that a reasonable mind might accept as adequate to support a Conclusion." Bethenergy Mines, Inc., v. Workmen's Compensation Appeal Board, 531 Pa. 287, 292, 612 A.2d 434, 436 (1992). In order to terminate benefits, the employer must establish that all disability related to a compensable injury has ceased. Pieper v. Ametek-Thermox Instruments Division, 526 Pa. 25, 584 A.2d 301 (1990).

USAir contends that substantial evidence exists to grant a termination petition where there is expert medical testimony that the claimant is fully recovered and can return to work without restrictions and there are no objective findings supporting subjective complaints of pain. It argues that this is true even if the medical expert testifying on behalf of the employer acknowledges the claimant's pain. USAir relies on Shepard v. Workmen's Compensation Appeal Board, 66 Pa. Commw. 101, 443 A.2d 862 (Pa. Commw. 1982) and its progeny.

In Shepard, a hearing was held on the employer's termination petition wherein conflicting evidence was presented regarding the claimant's injury. The physician testifying on behalf of the employer stated that he was aware of the claimant's complaints of pain but that he believed the claimant was fully recovered and could work without restrictions. The referee credited this testimony and granted the termination petition.

The Commonwealth Court affirmed the termination of benefits and stated

Neither Pennwalt, Stokes Division v. Workmen's Compensation Appeal Board, 44 Pa. Commw. 98, 403 A.2d 186 (1979) nor Workmen's Compensation Appeal Board v. F.W. Woolworth Co., 19 Pa. Commw. 413, 338 A.2d 784 (1975) stand for the proposition advanced by Shepard that the referee must find in favor of a claimant who complains of continued subjective symptoms even in the absence of medical evidence of an objective basis for his complaints. The question is factual and must rest with the factfinders. The cases cited simply state that the referee may consider in making his findings the claimant's subjective complaints as well as other medical evidence.

443 A.2d at 863-64.

The Commonwealth Court's holding in Shepard has been followed in various termination cases. See Jenkins v. Workmen's Compensation Appeal Board, 677 A.2d 1288 (Pa. Commw. 1996) (termination proper where referee credited employer's medical expert who testified that he acknowledged claimant's complaints of pain but found no objective basis for them); Bloom v. Workmen's Compensation Appeal Board (Keystone Pretzel Bakery), 677 A.2d 1314 (Pa. Commw. 1996) (when credited medical expert testimony establishes no objective evidence of ongoing disability and claimant was fully recovered, termination proper despite claimant's contentions of continued pain); Kerns v. Workmen's Compensation Appeal Board (Colt Resources, Inc.), 149 Pa. Commw. 268, 613 A.2d 85 (Pa. Commw. 1992) (same); Allen v. Workmen's Compensation Appeal Board (The Leathercraft Company), 150 Pa. Commw. 302, 615 A.2d 927 (Pa. Commw. 1992) (same); Corcoran v. Workmen's Compensation Appeal Board (Stuart Painting Company), 144 Pa. Commw. 398, 601 A.2d 887 (Pa. Commw. 1992) (same); ( Laird v. Workmen's Compensation Appeal Board (Michael Curran & Associates), 137 Pa. Commw. 206, 585 A.2d 602 (Pa. Commw. 1991) (termination proper where referee accepted employer's expert medical testimony that claimant was totally recovered even though he had no reason to question the claimant's complaints of pain); Williams v. Workmen's Compensation Appeal Board (Montgomery Ward), 127 Pa. Commw. 587, 562 A.2d 437 (Pa. Commw 1989) (mere reluctance by a physician to discount a claimant's unconfirmed subjective complaints is not tantamount to an implicit admission that claimant is not fully recovered).

The proposition relied on by the Commonwealth Court regarding the effect of a medical expert's acknowledgement of the claimant's pain seemingly arose in Rogers Motor Lines, Inc., v. Workmen's Compensation Appeal Board (Kenneth E. Baker), 144 Pa. Commw. 493, 601 A.2d 934 (Pa. Commw. 1992). In Rogers, the employer filed a termination petition, alleging that the claimant had fully recovered from his work-related disability. The referee found that the employer failed to sustain its burden of proof for a termination of benefits because it did not establish that the claimant's problems were a result of an injury other than the work-related injury. The Commonwealth Court affirmed, noting that the referee did not find that the claimant's disability had ceased. It further stated, "even Employer's doctor acknowledged that [Claimant] had continuing pain." 601 A.2d at 935.

Although the holding in Rogers was that the employer failed to prove that the injury had ceased, subsequent cases have cited Rogers for the proposition that the "finding of full recovery would not be supported by substantial evidence if the medical expert testifying for the defendant acknowledged the existence of continued pain suffered by the claimant." McFaddin v. Workmen's Compensation Appeal Board ( Monongahela Valley Hospital, 153 Pa. Commw. 252, 620 A.2d 709, 711 (Pa. Commw. 1993).

In Moltzen v. Workmen's Compensation Appeal Board (Rochester Manor), 166 Pa. Commw. 589, 646 A.2d 748 (Pa. Commw. 1994), the referee terminated the claimant's benefits on the ground that she was fully recovered. The referee credited the testimony of the employer's doctor who stated that he believed the claimant had continuing lower back pain, but that this pain was unrelated to her work injury. The Commonwealth Court reversed. Noting that credibility determinations are matters to be decided by the factfinder, the court accepted the referee's finding that the claimant's back pain was unrelated to her work injury. However, the court found that the employer's medical expert also testified that the claimant suffered from pain in her knee which was attributable to the physical therapy the claimant was undergoing for the work injury. The court concluded that because the knee pain was a result of the initial work injury, benefits should not have been terminated. The court cited McFaddin for the same proposition stated above regarding the improper termination of benefits when the employer's physician acknowledges the claimant's pain.

In these cases, the term "acknowledge" was used in the context of the employer's medical expert accepting the fact that the claimant suffered from pain, yet failing to opine that the pain was unrelated to the work injury. The term was not used to describe the medical expert's mere recognition that the claimant complained of pain. In each case, the factfinder evaluated the evidence and credited either the claimant's version of the facts or that of the employer. *fn1

The determination of whether a claimant's subjective complaints of pain are accepted is a question of fact for the WCJ. In the absence of objective medical testimony, the WCJ is neither required to accept the claimant's assertions, nor prohibited from doing so. *fn2 Testimony by the employer's medical expert as to the existence of the claimant's complaints of pain does not require the WCJ to find for the claimant. A contrary Conclusion would lead to the absurd result that a claimant could forever preclude the termination of benefits by merely complaining of continuing pain. What is ...


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