Gillyard v. WCAB (PA LIQ. CONTROL BD.)
| Decision Date | 11 January 2005 |
| Citation | 865 A.2d 991 |
| Parties | James GILLYARD, Petitioner v. WORKERS' COMPENSATION APPEAL BOARD (PENNSYLVANIA LIQUOR CONTROL BOARD), Respondent. |
| Court | Pennsylvania Commonwealth Court |
Daniel M. Jaffe, Philadelphia, for petitioner.
Audrey J. Copeland, Newtown Square, for respondent.
BEFORE: COLINS, President Judge, and McGINLEY, PELLEGRINI, FRIEDMAN, COHN JUBELIRER, SIMPSON and LEAVITT, JJ.
OPINION BY Judge FRIEDMAN.
James Gillyard (Claimant) petitions for review of the March 18, 2004, order of the Workers' Compensation Appeal Board (WCAB) affirming the decision of workers' compensation judge Francine Lincicome (WCJ Lincicome) to terminate Claimant's benefits as of May 14, 2001. We reverse.
On December 2, 1992, Claimant injured his back while in the course and scope of his employment as a store manager with the Pennsylvania Liquor Control Board (Employer). As a result, Claimant received benefits pursuant to a Notice of Compensation Payable (NCP), dated January 4, 1993, that described Claimant's injury as a lower back sprain and strain.
On June 1, 1995, Employer filed a petition to terminate Claimant's benefits (First Termination Petition), alleging that Claimant had fully recovered from his work-related injury as of May 5, 1995. Claimant filed an answer denying Employer's allegations, and the matter came before WCJ Thomas J. Hines (WCJ Hines), who denied Employer's First Termination Petition. Based on objective tests and the credible testimony of William Chollak, M.D., Claimant's treating physician, WCJ Hines found that Claimant had not recovered from his December 1992 work injury; instead, he found that Claimant would continue to suffer from disabling "chronic sciatica at the L5-S1 distribution on the right side with disc bulging at L4-5 and L5-S1 area," which was caused by that injury. (WCJ Hines' Findings of Fact, Nos. 4, 7.) Employer did not appeal from this decision.
On August 30, 2001, Employer filed another termination petition (Second Termination Petition), alleging that Claimant had fully recovered from his work-related injury as of May 14, 2001. Claimant denied the allegations, and hearings were held before WCJ Lincicome.
In support of its Second Termination Petition, Employer offered the March 12, 2002, deposition testimony of Easwaran Balasubramanian, M.D., a board-certified orthopedic surgeon, who examined Claimant on May 14, 2001, at Employer's request. Dr. Balasubramanian testified that, at the time, Claimant used a cane to walk but did not appear uncomfortable. He stated that Claimant complained of constant bilateral groin pain, as well as low back pain that Claimant attributed to his 1992 work injury. Claimant also had undergone hip surgeries in 1999, which he did not attribute to his work-related injury. Dr. Balasubramanian testified that Claimant currently was taking painkillers for the hip and back pain.
Dr. Balasubramanian reported that the results of his physical examination indicated that Claimant's back essentially was normal, with no sign of chronic sciatica or L5-S1 radiculopathy.1 Based on this examination, a review of Claimant's tests and records and consideration of Claimant's medical history, Dr. Balasubramanian diagnosed Claimant with a lumbar sprain/strain by history, which had fully resolved at the time of his May 14, 2001, examination. Dr. Balasubramanian opined that Claimant could not return to his pre-injury position but attributed Claimant's disability to hip problems unrelated to his employment with Employer. (WCJ Lincicome's Findings of Fact, No. 3.)
On cross-examination, Dr. Balasubramanian reaffirmed his opinion that Claimant suffered only sprains and strains as a result of his December 1992 work injury and that Claimant had fully recovered from these strains and sprains. Dr. Balasubramanian agreed that, in taking this position, he was at variance with the results of tests done on Claimant, and he differed with the reports of all the other doctors, which indicated that Claimant suffered from chronic L5-S1 radiculopathy.
At a November 18, 2002, hearing, Claimant testified on his own behalf, describing his work injury, his subsequent treatment and his continuing symptoms. Claimant stated that, as a store manager, he often had to lift heavy cases of liquor weighing as much as fifty pounds. Claimant recalled that, on December 2, 1992, he was helping to unload a shipment of cases, and he had the sensation of a rubber band stretching in his back. When he lifted the last case, he felt a pop which went from his lower back straight up to the back of his head, and he fell over; the next thing he knew, he was in the hospital under the care of Dr. Chollak. Claimant testified that he continues to treat with Dr. Chollak and still receives medication for his back pain.
According to Claimant, he has difficulty sleeping because of his back pain, and this causes him problems with fatigue during the daytime. Claimant asserted that the pain limits his ability to get out of bed or do daily activities and that he relies on help from his sister for many routine tasks. Claimant also testified that he could not return to his prior employment because his back pain makes it impossible to bend, lift and carry or spend significant time on his feet, as his pre-injury job requires. Claimant acknowledged having had two surgeries in 1999 as a result of avascular necrosis of the hips, which is not work-related. In addition, Claimant stated that he receives social security disability benefits and state pension benefits. (WCJ Lincicome's Findings of Fact, No. 1.)
Claimant also presented the September 11, 2002, deposition testimony of Dr. Chollak, a board-certified orthopedic surgeon. Dr. Chollak testified that when he saw Claimant on January 8, 1993, Claimant complained of low back pain with pain, numbness and tingling in his right leg. Claimant attributed the pain to his work-related injury of December 2, 1992, denying any prior back or right leg injury. (WCJ Lincicome's Findings of Fact, No. 2a.) Based on the initial examination, Dr. Chollak diagnosed Claimant with lumbosacral strain with right sciatica and probable disc herniation.
Dr. Chollak stated that Claimant underwent several diagnostic tests after that first visit: a CAT scan of Claimant's back, performed on March 23, 1993, which showed a bulging disc at L4-5 and L5-S1 with foraminal stenosis; an EMG performed on April 19, 1993, which was consistent with the CAT scan and showed L5-S1 radiculopathy, or sciatica, on the right; and a second EMG, performed on August 21, 1995, which showed moderate chronic L5-S1 right radiculopathy that had gotten worse since the prior EMG. Dr. Chollak testified that, despite various forms of treatment over the years, Claimant's back and right leg pain have persisted, as would be expected from his chronic nerve condition. (WCJ Lincicome's Findings of Fact, No. 2b.) Based on his examinations of Claimant, his review of Claimant's tests and records and his consideration of Claimant's medical history, Dr. Chollak opined that Claimant has not recovered from his work-related injury, i.e., the L5-S1 radiculopathy and chronic sciatica described in WCJ Hines' First termination Petition decision. Dr. Chollak further opined that Claimant is not able to return to his pre-injury position. Although acknowledging Claimant's non-work-related hip condition, Dr. Chollak attributed Claimant's continuing disability directly to his work-related back injury. (WCJ Lincicome's Findings of Fact, Nos. 2c-d.)
WCJ Lincicome rejected Claimant's testimony and found Dr. Balasubramanian's testimony more credible and persuasive than that of Dr. Chollak. (WCJ Lincicome's Findings of Fact, Nos. 4-6.) Based on these findings, WCJ Lincicome concluded that Employer met its burden of proving that Claimant was fully recovered from his 1992 work-related injury as of May 14, 2001, and that Employer's contest was reasonable. (WCJ Lincicome's Findings of Fact, Nos. 7-8; WCJ Lincicome's Conclusions of Law, Nos. 2-3.) Claimant appealed to the WCAB, which affirmed, and Claimant now petitions this court for review.2 Claimant first argues that the WCAB erred in affirming WCJ Lincicome's decision, which terminated Claimant's benefits based on Dr. Balasubramanian's testimony. Claimant points out that, in the First Termination Petition proceeding, WCJ Hines found that Claimant's work-related injury was "chronic sciatica at the L5-S1 distribution on the right side with disc bulging at L5-S1," and Claimant maintains that the parties now are bound by this finding under the doctrine of collateral estoppel.3 Claimant reasons that because Dr. Balasubramanian's testimony conflicts with that finding, his opinion that Claimant had fully recovered from his work-related lumbar strain and sprain is not substantial, competent evidence to support WCJ Lincicome's decision. We agree.
To succeed in a termination petition, the employer bears the burden of proving that the claimant's disability has ceased or that any current disability is unrelated to the claimant's work injury. Jones v. Workers' Compensation Appeal Board (J.C. Penny Co.), 747 A.2d 430 (Pa.Cmwlth.), appeal denied, 564 Pa. 718, 764 A.2d 1074 (2000). An employer may satisfy this burden by presenting unequivocal and competent medical evidence of the claimant's full recovery from his work-related injuries. Koszowski v. Workmen's Compensation Appeal Board (Greyhound Lines, Inc.), 141 Pa.Cmwlth.253, 595 A.2d 697 (1991). Claimant asserts that Dr. Balasubramanian's opinion is incompetent and not legally sufficient to support a termination of benefits because it fails to establish that Claimant had recovered from all his work-related injuries.
On the issue of Claimant's recovery, Dr. Balasubramanian provided the following relevant testimony.
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