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Moyer v. Workers' Compensation Appeal Board

May 21, 2009


The opinion of the court was delivered by: Judge Pellegrini

Submitted: April 24, 2009



Dennis Moyer (Claimant) appeals the decision of the Workers' Compensation Appeal Board (Board) reversing the order of the Workers' Compensation Judge (WCJ) granting Claimant's claim petition against Pocono Mountain School District (Employer) because it found the testimony of Claimant's medical witness equivocal.*fn1

Claimant was employed as a custodian by Employer. In April 2007, he filed a claim petition alleging that in March 2007, he sustained a work-related lower back injury when he lifted a large bucket of water to pour down the sink, after which he was totally disabled. Employer issued a notice of denial, maintaining that Claimant had not sustained a work-related injury and that he had no medical evidence to support a claim of disability.

Before the WCJ, Claimant testified that his job required light and heavy cleaning, and that he would mop, sweep and move desks and also that he used a floor polisher machine once or twice a week. Claimant explained that he worked between 3:00 p.m. and 11:00 p.m. and cleaned 14 classrooms as well as a stairwell and part of a hallway. According to Claimant, on March 2, 2007, while lifting a large bucket of water to dump in the sink, he heard something pop in the center of his back and his legs gave out and he fell down. Claimant testified that he called for help from his co-workers, but they did not hear him and it took him between 5 and 10 minutes to get up. Claimant explained that he had to use a wheeled-trash can as a walker so he could walk to a room and call his supervisor, Rich Turner (Turner), who then took Claimant to the hospital. He further testified that after that incident he had sharp, stabbing pain in his lower back and could not stand up straight and he experienced numbness in his legs. Claimant acknowledged that he had experienced lower back problems prior to the March 2007 accident, but stated that he could and did work despite those problems, while now the problems had intensified and he could no longer perform his job.

Behzad Maghsoudlou, M.D. (Dr. Maghsoudlou), board certified in neurology, testified on behalf of Claimant. He first examined Claimant in November 2005 for back issues that pre-existed his work injury. After Claimant described how the March 2, 2007 injury occurred and the resulting increase in his back pain, Dr. Maghsoudlou testified that it was his impression that Claimant had suffered an acute exacerbation of his condition which was caused by the lifting and emptying of the bucket because it was the only explanation for Claimant's symptoms. According to Dr. Maghsoudlou, Claimant's symptoms were intractable and Claimant could not return to his pre-injury duties following the March 2, 2007 incident.

On the issue of Claimant's back injury, Employer submitted the medical testimony of Michael D. Wolk, M.D. (Dr. Wolk), board certified in physical medicine and rehabilitation. He testified that he reviewed Claimant's various medical records and that Claimant had a history of back problems unrelated to work. In his opinion, Claimant's accident on March 2, 2007, was not an aggravation of his pre-existing condition or a new injury, but rather a recurrence of his long-standing lower back problems. In his opinion, Claimant had no work injury and was able to return to his job. On cross-examination, Dr. Wolk stated that as a result of the March 2, 2007 incident, Claimant was more symptomatic and had to go to the hospital.

The WCJ found Claimant credible and found as more credible and persuasive the testimony and opinions of Dr. Maghsoudlou than those of Dr. Wolk, whom he found not credible. He found that Claimant suffered a work-related aggravation of a pre-existing back problem and, as result, Claimant could not return to his pre-injury duties.

Employer appealed to the Board, arguing that Claimant had not presented substantial evidence that his injury was work-related because Dr. Maghsoudlou was equivocal. Employer maintained that Dr. Maghsoudlou's opinion was based on an assumption that the incident aggravated Claimant's pre-existing condition because the aggravation occurred immediately after he lifted the bucket and was, thus, insufficient. Relying on Lewis v. Workmen's Compensation Appeal Board (Pittsburgh Board of Education), 508 Pa. 360, 498 A.2d 800 (1985), the Board reversed the order of the WCJ. This appeal followed.*fn2

Claimant maintains that the Board erred in finding Dr. Maghsoudlou's testimony equivocal because when taken a whole, that testimony established a causal connection between the work incident and Claimant's current disability.*fn3

We note that there are no "magic words" a medical expert must say to establish causation and reviewing bodies are not permitted to pick one or two sentences out of context -- rather, the testimony as a whole must contain a requisite level of certainty necessary to deem it unequivocal. See Thomas Jefferson University Hospital v. Workmen's Compensation Appeal Board (Giordano), 541 A.2d 1171 (Pa. Cmwlth. 1988); Bethlehem Mine Corporation v. Workmen's Compensation Appeal Board (Plutch), 509 A.2d 942 (Pa. Cmwlth. 1986).

Testimony is equivocal when the medical expert merely assumes that an injury is work-related based on temporal proximity to a work event. See Lewis. In Lewis, the medical witness was found equivocal in part because he assumed that the injury was caused by a work incident. In that case, the claimant had pre-existing neck problems from a football injury. He alleged that he incurred a work-related injury while moving furniture. He did not go to the hospital until nine days after the injury and then underwent surgery. To establish that the injury was work-related, the claimant's doctor testified that the work incident could have been directly or indirectly the cause of claimant's condition. He then read from a report he prepared in which he stated that the claimant's symptoms could have been aggravated simply through the normal aging process or through repeated trauma to the neck incurred in football coaching. More pertinent is Bisei v. Workmen's Compensation Appeal Board (Tower Lines, Inc.), 433 A.2d 592 (Pa. Cmwlth. 1981), in which two physicians testified but neither could offer a diagnosis for the claimant's symptoms. One stated he could only assume that they were related to the recent accident because they coincided with its occurrence, and the other repeatedly stated that he did not have an opinion on the etiology of the claimant's symptoms. Those cases, however, are distinguishable from the facts in this appeal.

The statement that Employer and the Board focused on in finding that Dr. Maghsoudlou's testimony was equivocal ...

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