Certainteed Corp. v. W.C.A.B. (Williams)

• Decision Date: 26 May 1989
• Citation: 126 Pa.Cmwlth. 311,559 A.2d 971
• Court: Pennsylvania Commonwealth Court
• Parties: CERTAINTEED CORPORATION and Aetna Casualty & Surety Company, Petitioners, v. WORKMEN'S COMPENSATION APPEAL BOARD (WILLIAMS), Respondents. 2338 C.D. 1988

Page 971

559 A.2d 971

126 Pa.Cmwlth. 311

CERTAINTEED CORPORATION and Aetna Casualty & Surety Company Petitioners, v. WORKMEN'S COMPENSATION APPEAL BOARD (WILLIAMS), Respondents.

2338 C.D. 1988

Commonwealth Court of Pennsylvania.

Submitted on Briefs Feb. 15, 1989.

Decided May 26, 1989.

Daniel K. Deardorff and Martson, Deardorff, Williams & Otto, Carlisle, for petitioners.

Richard W. Rosenblitt and Galfand, Berger, Lurie & March, Philadelphia, for respondent, Paul R. Williams.

Before DOYLE and McGINLEY, JJ., and BARBIERI, Senior Judge.

DOYLE, Judge.

This is an appeal by Certainteed Corporation (Employer) and Aetna Casualty and Surety Company from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision setting aside the final receipt of Paul R. Williams (Claimant) and reinstating his compensation pursuant to Section 434 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1001. We affirm.

This case first appeared before this Court in 1985. At that time, the original referee found that Claimant sustained a work-related injury on November 22, 1976. As a result of this injury, Claimant was hospitalized in April 1978. He returned to work at the beginning of November 1978 and on November 6, 1978, executed a final receipt. Claimant returned to duty at his previous or higher wages and continued to work until October 2, 1981, at which point he was furloughed (along with forty-nine other employees) because of poor economic conditions. On October 28, 1981, Claimant filed his petition to set aside the final receipt. While Claimant maintained that upon return to work he was placed on light duty assignment, the witness for Employer testified that upon return to work Claimant had the same job title and substantially the same duties as he had prior to his injury. Claimant's doctor testified that Claimant's condition had neither worsened nor improved. The original referee made no findings on whether the doctor's testimony was credible; he did, however, find credible the testimony of Employer's witness and did not find credible the testimony of Claimant with respect to the job duties Claimant maintained he performed upon return to work. The original referee then dismissed Claimant's petition to set aside the final receipt and the Board affirmed.

On appeal, this Court remanded the case for determination of two specific findings: (1) whether Claimant's expert witness, Dr. Butera, was a credible witness; and (2) whether Dr. Butera presented unequivocal medical evidence that Claimant was, in fact, disabled on the date he signed the final receipt.

On remand, the referee found the testimony of Dr. Butera to be credible, and further found that Claimant had not fully recovered from his injury when he signed the final receipt on November 6, 1978. As a result, the referee entered a suspension of Claimant's benefits effective November 6, 1978, and reinstated Claimant's total disability benefits effective October 2, 1981, the date Claimant was furloughed. The Board affirmed the referee's decision and this appeal ensued.

In this appeal, Employer contends that there was insufficient evidence to justify setting aside the final receipt. In order to have a final receipt set aside under Section 434 of the Act, it is the claimant's burden to prove by sufficient credible competent evidence that all disability related to the injury had not, in fact, ceased when the final receipt was executed. Sheibley v. Workmen's Compensation Appeal Board (ARA Food Services Co.), 86 Pa.Commonwealth Ct. 28, 483 A.2d 593 (1984). Additionally, where, as here, a claimant is able to return to work with no loss of earning power and no obvious residual disability, unequivocal medical testimony is required to establish continuing disability. Dunmore School District v. Workmen's Compensation Appeal Board (Lorusso), 89 Pa. Commonwealth Ct. 368, 492 A.2d 773 (1985).

The record before us reveals that Claimant was initially treated by Dr. Herman Gailey who died prior to the filing of Claimant's petition. Dr. Butera, Claimant's expert, received and reviewed all of Dr. Gailey's notes and records as well as the records of Employer's physician, who treated Claimant. Dr. Butera also made an independent diagnosis when he began treating Claimant in August 1979. Dr. Butera opined that Claimant suffered from "adhesive capsulitis of the shoulder" which was caused by his work-related injury suffered on November 22, 1976. He testified as follows:

A. Doctor, in your opinion, is that what caused the adhesive capsulitis in [Claimant's] case? [Describing Claimant's November 22, 1976 injury.]

A. Yes.

Q. Following your examination of October 28, of 1981, are there any restrictions which you feel are imposed on [Claimant] as a result of the adhesive capsulitis?

A. We supported restrictions on [Claimant] from early on, shortly after the time of our initial evaluation. This was a continuation of a light duty status that had been recommended by Dr. Gailey.

After examining [Claimant] initially, I felt those recommendations were appropriate, and continued them indefinitely.

Q. And what were those restrictions? Do you have those restrictions?

A. Specifically, we indicated that [Claimant] would be unable to use the involved right upper extremity in certain ways.

We suggested that he would be able to frequently lift no more than 5 pounds with his right arm.

We recommended that occasionally he could lift up to 15 pounds, and also carry that amount of weight in the right arm.

We recommended that given the restriction of shoulder motion, that he was unable to carry out any repetitive activity. Also because of the restricted shoulder motion he would be unable to carry out any activity which required overhead use of the arm.

Q. These are the restrictions which you would impose at what time?

A. We felt that these restrictions should be imposed from the time of my initial evaluation. I also felt that in essence they were a continuation of restrictions that had previously been imposed by Dr. Gailey.

Q. And are these restrictions still imposed?

A. Yes, they are.

Q. And, to clarify, these restrictions are imposed as a result of which condition?

A. The adhesive capsulitis.

Dr. Butera further testified that if Claimant attempted to perform his preinjury job as a janitor, it would result in even further restriction in his shoulder motion.

We hold that this medical testimony is unequivocal and is sufficient to establish Claimant's continuing disability. Thus, it is legally sufficient to support the referee's decision to set aside Claimant's final receipt.

Employer also contends that the referee committed error when he reinstated Claimant's benefits upon Claimant's furlough since Claimant had been, as the original referee had found, capable of performing his time of injury job when he had returned to work after signing the final receipt. Again, this Court cannot agree with Employer's argument.

In his order, the referee suspended Claimant's benefits...