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12/24/97 JOSEPH JORDAN v. WORKMEN'S COMPENSATION

December 24, 1997

JOSEPH JORDAN,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CONSOLIDATED ELECTRICAL DISTRIBUTORS AND AETNA LIFE & SURETY), APPEAL OF: CONSOLIDATED ELECTRICAL DISTRIBUTORS AND AETNA LIFE & SURETY



Appeal from the Order of the Commonwealth Court dated November 29, 1995, at No. 3216 C.D. 94, reversing the Order of the Workmen's Compensation Appeal Board dated November 28, 1994, at No. A94-0330.

Justice Zappala. Madame Justice Newman did not participate in the consideration or decision of this case. Mr. Justice Cappy files a Dissenting Opinion in which Mr. Justice Nigro joins.

The opinion of the court was delivered by: Zappala

JUSTICE ZAPPALA

DECIDED: DECEMBER 24, 1997

This appeal raises the issue of whether the Commonwealth Court erred by concluding that there was insufficient evidence to support the termination of workers' compensation benefits. We reverse.

On June 17, 1991, Joseph Jordan, Appellee, suffered a lumbar disc injury during the course of his employment as a warehouse receiver for Consolidated Electrical Distributors, Inc. (Consolidated), Appellant. Pursuant to a notice of compensation payable, Jordan received total disability benefits. Jordan had previously sustained a work-related injury to his back in 1986 which required surgery in 1987.

On February 27, 1992, Consolidated filed a petition for termination. Several hearings were held where both parties introduced expert medical testimony. Consolidated presented the testimony of three medical experts. Thomas B. Benz, M.D., testified that Jordan complained of testicular pain, but that this pain was unrelated to his work-related back injury. Brian Ernstoff, M.D., testified that he examined Jordan on four occasions and found no objective evidence of ongoing impairments. He further stated that Jordan was able to return to work without any restrictions. Physical therapist Leanne Darling testified that although Jordan complained of mild back discomfort during his work hardening program, the pain did not interfere with his ability to perform tasks.

The WCJ initially credited this testimony and concluded that Jordan had completely recovered from his work-related back injury. He further concluded that Jordan's testicular pain was unrelated to the work injury. The Workmen's Compensation Appeal Board (Board) affirmed the termination of benefits, finding that sufficient evidence supported the WCJ's findings.

The Commonwealth Court affirmed the Board's decision. The court subsequently granted reconsideration, vacated its prior order and reversed. Relying on Udvari v. Workmen's Compensation Appeal Board (USAir), 667 A.2d 433 (Pa. Commw. 1995), the court found that although sufficient evidence supported the Conclusion that Jordan's testicular pain was unrelated to his work injury, there was not sufficient evidence establishing that all of Jordan's work-related back injury had ceased. The court noted that a finding that Jordan could return to work without restrictions was not synonymous with a finding that his disability had ceased. Because Jordan's time-of-injury position was no longer available, the court found that a suspension of benefits was not appropriate. The court therefore reversed the termination order and remanded the case solely for the determination of costs.

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).

We must determine whether the WCJ's finding that Jordan fully recovered from his work injury is supported by substantial evidence.

Consolidated contends that sufficient evidence existed to support the termination of benefits because Dr. Ernstoff testified that there was no objective medical evidence of Jordan's pain and that he could return to work without restrictions. It argues that although Dr. Ernstoff testified regarding Jordan's complaints of pain, he did not opine that Jordan continued to suffer pain.

We discussed the effect of a claimant's subjective complaints of pain in Udvari v. Worker's Compensation Appeal Board (USAir, Inc.), 1997 Pa. LEXIS 2754, Pa. , A.2d (1997) [J-47-97]. In Udvari, the WCJ granted the termination petition based upon expert medical testimony establishing that the claimant had completely recovered from her work injury and no longer required treatment. The Commonwealth Court reversed on the grounds that the employer's physician testified regarding the claimant's continuing pain. *fn1

On appeal, we concluded that the employer's expert did not concede that the claimant continued to experience pain as a result of the work-related injury. Instead, he merely noted that he would give the claimant "the benefit of the doubt" that she believed she experienced some sort of pain. The expert clearly and unequivocally testified that the claimant was fully recovered, that there was no objective basis for her complaints and that he believed her symptoms were exaggerated. The WCJ's finding that she was fully recovered was therefore supported by substantial evidence. In reaching this Conclusion we stated:

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. 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 relevant in deciding whether the termination of benefits is warranted is whether the claimant suffers from pain as a result of the work-related injury.

We must keep in mind that the employer bears the burden of proof in a termination proceeding to establish that the work injury has ceased. In a case where the claimant complains of continued pain, this burden is met when an employer's medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to work without restrictions and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury.

Slip op. at 7-8 (citations omitted).

Here, Dr. Ernstoff unequivocally testified that there were no objective medical findings to support Jordan's complaints of back pain and that he did not find evidence of any ongoing impairments. R. 181a, 195a. It is this testimony that the WCJ relied upon in terminating benefits. *fn2 This constitutes sufficient evidence to support the finding that Jordan fully recovered from his work injury.

The Commonwealth Court instead relied upon the following emphasized portion of Dr. Ernstoff's testimony.

Q.

What were your findings on that ...


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