Koszowski v. W.C.A.B. (Greyhound Lines, Inc.)

• Decision Date: 15 July 1991
• Citation: 141 Pa.Cmwlth. 253,595 A.2d 697
• Parties: Donald KOSZOWSKI, Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (GREYHOUND LINES, INC.), Respondent. GREYHOUND LINES, INC., Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (KOSZOWSKI), Respondent.
• Court: Pennsylvania Commonwealth Court

Page 697

595 A.2d 697

141 Pa.Cmwlth. 253

Donald KOSZOWSKI, Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (GREYHOUND LINES, INC.),

Respondent.

GREYHOUND LINES, INC., Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (KOSZOWSKI), Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Feb. 8, 1991.

Decided July 15, 1991.

Larry Pitt, Wyncote, for petitioner/respondent, Donald koszowski.

Marshall A. Haislup, III, Philadelphia, for respondent/petitioner, Greyhound Lines, Inc.

Before SMITH and PELLEGRINI, JJ., and SILVESTRI, Senior Judge.

SMITH, Judge.

Before this Court are the cross petitions for review of Donald Koszowski (Claimant) and Greyhound Lines, Inc. (Employer) from the July 30, 1990 order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision denying Employer's petition for termination, suspension or modification (termination petition). The referee ordered Employer to continue paying Claimant workers' compensation benefits under The Pennsylvania Workmen's Compensation Act ¹ (Act) and to pay all medical expenses set forth in the referee's decision. The referee further ordered that Claimant's attorney receive as a counsel fee twenty percent of Claimant's disability compensation chargeable solely to the compensation and to be deducted therefrom. The referee found that the twenty percent fee agreement between Claimant and his attorney was fair and reasonable. ²

On January 11, 1986, Claimant, a bus driver, suffered a work-related back injury while taking baggage off a bus. Pursuant to a notice of compensation payable, Claimant was paid a weekly disability rate of $270.88. On September 3, 1987, Employer filed its termination petition alleging that Claimant had recovered from his work-related injury as of May 28, 1987. The Board affirmed the referee's decision in this matter and both Employer and Claimant appealed to this Court questioning respectively whether substantial evidence exists to support the decision and whether the referee erred in limiting the attorney's fee award to twenty percent of the disability compensation only. ³

Employer argues that the referee's conclusion that Employer failed to meet its burden that Claimant fully recovered from his work-related injury is not supported by substantial evidence. Employer asserts that the testimony of its medical expert, Dr. Salkind, clearly rises to the level of competent medical evidence and that Dr. Salkind unequivocally testified that Claimant "had recovered completely from his work-related accident." Deposition of Dr. Salkind, p. 19. Further, Employer points to the fact that Conclusions of Law No. 2, wherein the referee found that Employer failed to meet its burden, is inconsistent with that portion of Findings of Fact No. 3, wherein the referee stated that "Dr. Salkind opined to a reasonable degree of medical certainty that claimant was fully recovered from his work-related injury of January 11, 1986."

In a termination proceeding, the employer bears the burden of proving that a work-related disability has ceased. Gallo v. Workmen's Compensation Appeal Board (United Parcel Service), 95 Pa.Commonwealth Ct. 158, 504 A.2d 985 (1986). This burden can be met by presenting unequivocal and competent medical evidence of a claimant's full recovery from a work-related injury. Ruhl v. Workmen's Compensation Appeal Board (Erie County Geriatric Center), 102 Pa.Commonwealth Ct. 374, 518 A.2d 345 (1986). A determination of whether medical testimony is equivocal is a conclusion of law fully reviewable by this Court. Lewis v. Commonwealth, 508 Pa. 360, 498 A.2d 800 (1985). Credibility of witnesses, however, is for the referee to evaluate and he or she may accept the testimony of one witness over that of another. Smith v. Workmen's Compensation Appeal Board (Westinghouse Electric Corp.), 90 Pa.Commonwealth Ct. 246, 494 A.2d 877 (1985).

Although the referee found that Dr. Salkind opined to a reasonable degree of medical certainty that Claimant was fully recovered from his work-related injury, this finding is not inconsistent with the referee's conclusion that Employer failed to meet its burden. The referee also found that Dr. Vincent Baldino, Claimant's family physician, opined to a reasonable degree of medical certainty that Claimant suffered from a post-traumatic lumbar strain and sprain with post-traumatic L4-L5 and L5-S1 herniated discs, with left radiculopathy and further, that there was a direct causal connection between Claimant's current condition and his work-related injury. Findings of Fact No. 5. The referee's findings indicate that the medical evidence was conflicting; however, considering all of the evidence submitted by both sides, the referee accepted Claimant's physician's testimony over that of Employer's, which the referee found to be sufficient, competent and credible. For this reason, the referee did not err by concluding that Employer failed to meet its required burden of proving that Claimant fully recovered from his work-related injury.

Employer next argues that the referee erred by failing to consider Dr. Salkind's testimony as a whole. Employer asserts that the referee evaluated Dr. Salkind's testimony based upon an isolated statement which resulted in the referee's mischaracterization of the doctor's testimony. Specifically, Employer calls attention to the referee's finding that Dr. Salkind admitted on cross-examination that Claimant's objective studies show a central disc herniation of L5 touching the thecal sac and a bulging annulus at L4-L5 and that the referee neglected to point out that Dr. Salkind was responding to questions about opinions contained in reports which he did not prepare and which he specifically rejected. Employer's Brief, p. 12; Salkind Deposition, pp. 22-24, 27-28. Further, Employer contends that Dr. Salkind testified about his own review of the latest objective study--the September 11, 1986 CT scan of Claimant--which in his opinion did not evidence any herniated discs nor any significant findings such as compression of nerve roots or the thecal sac. Salkind Deposition, pp. 12-13, 27-28. Dr. Salkind, however, testified on cross-examination that "clearly there was something abnormal" and that there was a small central disc herniation at L-5. Salkind Deposition, pp. 13, 23-24. Additionally, he admitted on direct examination that there was indeed mild disc bulging at L4-L5. Thus, a review of Dr. Salkind's testimony in its entirety evidences that the referee did not take a few words of Dr. Salkind out of context but instead reviewed the testimony in its entirety to determine whether or not it is competent and sufficient. See May Department Stores v. Workmen's Compensation Appeal Board (Smith), 105 Pa.Commonwealth Ct. 580, 525 A.2d 33, appeal denied, 516 Pa. 623-24, 532 A.2d 21 (1987).

Employer next argues that the referee erred by ordering payment of medical bills because Claimant failed to prove a causal relationship between the bills and Claimant's work injury and that the causal nexus between the bills and the injury was not obvious. In a workmen's compensation matter, medical expenses, to be reimbursed, must be causally connected to a claimant's compensable injuries. King v. Workmen's Compensation Appeal Board (Wendell H. Stone Co.), 132 Pa.Commonwealth Ct. 292, 572 A.2d 845 (1990). In cases where the causal connection is not obvious, claimant must prove a causal relationship between the work injury and the medical bills before an employer is required to pay those bills. King. Employer challenges Dr. Romy's bill for $14,685 and those of Ritner Physical Therapy for $2590 on the basis that Claimant has not produced competent evidence of a causal connection between these bills and Claimant's work-injury.

Dr. Baldino testified that in his opinion, Dr. Romy's bills were reasonable and necessary charges incurred as a result of Claimant's work-related injury and that all the charges were in line with what is usually medically done with injuries such as those suffered by Claimant. Baldino Deposition, pp. 14-15. With respect to the Ritner Physical Therapy bills, Dr. Baldino further testified that Claimant was placed in passive physical therapy including ultrasound, electric muscle stimulation and therapeutic massage at an estimated cost of between $4500 and $5000. A bill from Ritner Physical Therapy indicates that Claimant, indeed, attended physical therapy three times weekly for seven months at a total cost of $2950. Baldino Deposition, pp. 20-21. Thus, evidence of record sufficiently establishes a causal relationship between Claimant's medical bills and his work-related injury sufficient to require Employer to pay said expenses. ⁴

Finally, in the cross appeal, Claimant argues that where the total amount of workmen's compensation benefits awarded includes medical expenses, the attorney's fee should also include twenty percent of the total medical expenses in addition to twenty percent of the disability benefits. ⁵ Claimant argues that the referee erred in limiting the attorney's fee award to twenty percent of the disability compensation since Claimant was also awarded medical expenses and thus his attorney should receive twenty percent of the award for medical benefits as well as twenty percent of disability compensation awarded. Section 442 of the Act, 77 P.S. § 998,...