Daniels v. WCAB (Tristate Transport)

• Decision Date: 23 May 2000
• Citation: 753 A.2d 293
• Parties: Wayne DANIELS, Petitioner, v. WORKERS' COMPENSATION APPEAL BOARD (TRISTATE TRANSPORT), Respondent.
• Court: Pennsylvania Commonwealth Court

753 A.2d 293

Wayne DANIELS, Petitioner, v. WORKERS' COMPENSATION APPEAL BOARD (TRISTATE TRANSPORT), Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs November 3, 1999.

Decided May 23, 2000.

As Amended June 1, 2000.

Kathy Kennedy, Philadelphia, for petitioner.

Lisa D. Eldridge, Philadelphia, for respondent.

Before DOYLE, President Judge, and COLINS, J., SMITH, J., PELLEGRINI, J., FRIEDMAN, J., KELLEY, J., and LEADBETTER, J.

KELLEY, Judge.

Wayne Daniels (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) affirming the decision of a Workers' Compensation Judge (WCJ) granting the petition of Tristate Transport (Employer) to terminate the disability benefits awarded to Claimant pursuant to the Workers' Compensation Act (Act).¹ We affirm.

On December 13, 1990, Claimant was involved in a motor vehicle accident while in the course and scope of his employment with Employer. As a result of the accident, Claimant suffered an injury to his lumbosacral spine and continuing low back pain with radiation into his lower left extremity. Subsequently, Claimant filed a claim petition for disability benefits based on the work-related injuries. On August 10, 1991, Claimant was awarded benefits for these injuries.² On January 9, 1992, Employer filed a petition to terminate Claimant's benefits. In the petition Employer alleged that, as of November 7, 1991, Claimant's disability had ceased and that he was able to return to work without restriction. On February 19, 1992, Claimant filed an answer to Employer's petition denying all of the material allegations raised therein. Hearings before a WCJ ensued.

In support of the termination petition, Employer presented the deposition testimony of John T. Williams, M.D., a physician board certified in orthopedic surgery. In opposition to the termination petition, Claimant testified and presented the deposition testimony of Stephan Fabian, M.D., a family physician and Claimant's treating physician.

Dr. Williams testified that he examined Claimant on November 7, 1991. Dr. Williams discussed the numerous objective tests that he performed on Claimant during his physical examination and Claimant's responses thereto. Dr. Williams testified that Claimant's responses to the tests were inappropriate for the type of tests being performed. He stated that his physical examination of Claimant's back and lower extremities was within normal limits and revealed no positive objective findings that could correlate to Claimant's complaints of back pain and radiation into his extremities. Dr. Williams opined that, by history, Claimant sustained an acute lumbrosacral sprain/strain which had resolved. Dr. Williams further opined that Claimant was able to return to work without any restrictions.

Claimant testified that his low back and legs have bothered him since the accident. He also testified that he cannot perform the duties of his pre-injury position as an ambulance driver with Employer.

Dr. Fabian testified that he last examined Claimant on October 16, 1992 and Claimant complained of pain in his lumbar spine which intermittently radiated into his right and left legs. Dr. Fabian opined that Claimant suffers from post-traumatic cervical and lumbar sprain with a protruding disc at the L-4-5 level which is causally related to the accident of December 13, 1990. Dr. Fabian further opined that Claimant is unable to return to the duties of his employment with Employer or any other employment at this time.

On March 10, 1997, the WCJ issued an order and decision disposing of Employer's termination petition in which she made the following relevant findings of fact:

5. John T. Williams, M.D. is board certified in orthopedic surgery. He evaluated Claimant on November 7, 1991. Claimant complained of pain in his back at L4-L5 to the right and in his stomach. Claimant's history included water pills, severe headaches, going to the bathroom at least ten times a night and spitting up blood. Claimant reported that he had an enlarged heart. He has a family history of diabetes. Dr. Williams did not review the x-rays, CAT Scan and nerve conduction test performed.

6. Dr. Williams opined that there were no positive objective findings upon examination. Dr. Williams opined Claimant had sustained an acute lumbosacral sprain and strain that had resolved. He further opined Claimant could resume his normal duties without restriction.

7. Dr. Fabian is Claimant's treating physician. He performed an examination on December 13, 1990 which revealed paraspinal muscle spasm in the paraspinal muscles of the cervical and lumbar region. He had limitation of flexion, extension and rotation of the lumbar spine with approximately fifty percent and somewhat less in the cervical spine, forty-five percent limitation of motion.

8. Dr. Fabian prescribed physical therapy four times a week with extreme restriction of Claimant's activities.

Claimant improved substantially after the first four months, but he still had pain in his lumbar spine which would radiate into his right and left legs, particularly into the left. Physical therapy was reduced to two times per week. Claimant reached a plateau after eight or nine months of treatment. It is Dr. Fabian's opinion Claimant's limitation of his cervical and lumbar region was approximately twenty to twenty-five percent.

9. Dr. Fabian last saw Claimant on October 16, 1992. Claimant complained of pain in his lumbar spine, intermittently radiating into his right and left leg, particularly into his left. Claimant has substantial improvement of his cervical spine. It is Dr. Fabian's opinion claimant's limitation of cervical flexion, extension and rotation is approximately fifteen percent.

10. Dr. Fabian reviewed the CT Scan which shows a mild concentrically protruding disc at level L4-5. The EMG was normal.

11. It is Dr. Fabian's opinion that Claimant suffers from post traumatic cervical and lumbar sprain with a protruding lumbar disc at the level of L4-L5 which is causally related to Claimant's automobile accident of December 13, 1990. Claimant had no history of prior pain in the regions affected.

12. Dr. Fabian opined Claimant is unable to return to his duties as an ambulance driver or any other type of employment at this time. Claimant is still experiencing radicular pain which is exacerbated by physical activity. He has limitation of lumbar flexion, extension and rotation and to a lesser degree cervical problems that prohibit him from doing any type of active physical work. Claimant is unable to sit longer than fifteen or twenty minutes in one position. His ambulation is severely limited to approximately one to one and a half blocks.

13. Claimant testified he was a supervisor for the Employer. His duties consisted of picking up patients and making sure the ambulances had equipment. Claimant would lift tanks of oxygen weighing as much as 100 pounds.

14. Claimant testified he was in the ambulance when it was rear-ended on December 13, 1990. He sought treatment at Germantown Hospital where they took x-rays and gave him pain pills. He continued his treatment with Dr. Fabian. He receives physical therapy three times a week and sees Dr. Fabian once a week. Claimant takes Tylenol with Codeine for pain.

15. Claimant testified that his low back and legs have continued to bother him since the accident. He is only able to stand or sit for about an hour. It starts to hurt in his lower back if he walks. Claimant believes he is able to lift 20 pounds. Claimant does not believe he can perform his pre-injury employment. He does not believe he can perform any employment while he is on medication.

16. Based upon a review of the evidentiary record as a whole, this Judge finds the testimony of the Claimant is not credible or persuasive.

17. Based upon a review of the evidentiary record as a whole, this Judge finds the opinions of Dr. Williams to be more credible and persuasive than the opinions of Dr. Fabian. Accordingly, the opinions of Dr. Fabian are rejected wherever inconsistent with the opinions of Dr. Williams.

18. This Judge finds Claimant was fully recovered from his December 13, 1990 work injury as of November 7, 1991.

WCJ Decision, pp. 3-4.

Based on the foregoing, the WCJ determined that Employer had sustained its burden of establishing that Claimant was fully recovered from his work injury of December 13, 1990 as of November 7, 1991. Id. at p. 5. As a result, the WCJ issued an order granting Employer's petition to terminate Claimant's disability benefits. Id.

On March 27, 1997, Claimant appealed the WCJ's decision to the Board. On August 5, 1998, the Board issued an order affirming the WCJ's decision. Claimant then filed the instant appeal in this Court.³

In this appeal Claimant contends that the Board erred in affirming the WCJ's decision in that: (1) the WCJ's determination that he had fully recovered from his compensable work-related injury is not supported by substantial evidence; and (2) the WCJ failed to issue a reasoned decision as required by Section 422(a) of the Act.⁴

We initially note that an employer seeking to terminate a claimant's benefits must prove that the claimant's disability has ceased or that any existing injury is not the result of the work-related injury. Jaskiewicz v. Workmen's Compensation Appeal Board (James D. Morrisey, Inc.), 651 A.2d 623 (Pa.Cmwlth.1994), petition for allowance of appeal denied, 541 Pa. 628, 661 A.2d 875 (1995). An employer may satisfy this burden by presenting unequivocal and competent medical evidence of claimant's full recovery from the work-related injury. Koszowski v. Workmen's Compensation Appeal Board (Greyhound Lines, Inc.), 141 Pa.Cmwlth. 253, 595 A.2d 697 (1991).

Claimant first contends that the Board erred in affirming the WCJ's decision because the WCJ's determination that he had fully recovered from his compensable work-related injury is not supported by substantial evidence. Claim...