Opinion
Argued June 4, 1981
December 7, 1981.
Workmen's compensation — Causation — Scope of appellate review — Error of law — Findings of fact — Substantial evidence — Credibility — Conflicting testimony — Unequivocal medical testimony — Specialist.
1. In a workmen's compensation case where there exists no obvious causal relationship between a work incident and a condition of disability, the claimant must establish that causal connection with unequivocal medical testimony. [84]
2. In a workmen's compensation case where the party with the burden of proof prevailed below, review by the Commonwealth Court of Pennsylvania is to determine whether an error of law was committed and whether findings of fact were unsupported by substantial evidence, leaving to the factfinder questions of credibility and evidentiary weight. [84-5]
3. Mere conflicts in the testimony of a medical witness do not render his opinion equivocal, and a referee in a workmen's compensation case may properly accept the unequivocal causation testimony of the physician given on direct examination, while rejecting somewhat conflicting testimony given during cross-examination. [85]
4. The fact that a qualified medical witness is not a specialist in the area about which he testifies goes to the weight of his testimony, not to his competency. [86]
Judge BLATT filed a concurring opinion which was substantially as follows:
1. Whether medical testimony in a workmen's compensation case is equivocal goes to competency rather than to credibility and is a matter for determination by a reviewing court based upon a review of the entire testimony of the witness. [86]
Argued June 4, 1981, before Judges ROGERS, BLATT and PALLADINO, sitting as a panel of three.
Appeal, No. 1602 C.D. 1980, from the Order of the Workmen's Compensation Appeal Board in case of John James Mulvihill v. J. I. Hess Company, Inc., No. A-78290.
Petition to the Department of Labor and Industry for workmen's compensation benefits. Benefits awarded. Employer and insurance carrier appealed to the Workmen's Compensation Appeal Board. Appeal dismissed. Employer and insurance carrier appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Joseph Grochmal, with him Leonard P. Kane, Jr., Fried, Kane, Walters Zuschlag, for petitioners.
C. William Berger, Berger, Kapetan, Malakoff Meyers, P.C., for respondent, John James Mulvihill.
J. I. Hass Company, Inc. (Hass) and its insurer, the Twin City Fire Insurance Company, appeal here from an opinion and order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of total disability benefits to John J. Mulvihill (Claimant). We affirm.
On November 2, 1973, while working as an assistant painter for Hass, Claimant was accidently overcome by fumes from an epoxy sealer, and was temporarily rendered unconscious. Following this accident, Claimant, who had previously been healthy, began to have difficulty deciphering written words, and increasingly suffered from severe headaches, periods of depression, and personality changes characterized by "violent emotional reactions." These conditions eventually prevented Claimant from working after August 1, 1974, and on November 13, 1975, Claimant filed a claim petition for total disability benefits with the workmen's compensation authorities.
At a referee's hearing on Claimant's claim petition, conducted on May 3, 1976, the only expert medical evidence submitted was a deposition of Claimant's physician, Dr. Gerald M. Lisowitz, who testified that Claimant was totally disabled by an organic brain syndrome (brain damage) caused by his November 2, 1973, accident at Hass. Based on this evidence, the referee subsequently awarded benefits. On appeal, the Board concluded that the referee had prematurely terminated the proceedings below, and remanded the case to afford the petitioners an opportunity to adduce additional medical evidence. When the petitioners subsequently failed to present any medical evidence, however, the referee reissued his original opinion which was sustained on further appeal to the Board. The present appeal followed.
Before this Court, the petitioners allege that there is not substantial evidence in the record to support the Board's determination that Claimant's disability was causally related to his accident at Hass. Specifically, the petitioners allege (1) that Dr. Lisowitz's testimony was equivocal on the issue of causation since he conceded on cross-examination that he could not be "100 percent" sure that the compounds Claimant inhaled during his accident at Hass could cause brain damage, and (2) that Dr. Lisowitz's testimony should have been disregarded since he was not an expert toxicologist. We disagree.
It is well established that "where no obvious causal relationship exists between a work incident and a disabling injury, a workmen's compensation claimant must establish causation with unequivocal medical testimony in order to recover [benefits]." Cooper-Jarrett, Inc. v. Workmen's Compensation Appeal Board, 55 Pa. Commw. 204, 208, 423 A.2d 52, 55 (1980).
Where, as here, the party with the burden of proving causation has prevailed below, our scope of review is limited to determining whether "an error of law was committed, or a necessary finding of fact was unsupported by substantial evidence, leaving questions of evidentiary weight and credibility to the referee." American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, 31 Pa. Commw. 590, 594, 377 A.2d 1007, 1009 (1977).
In their brief to this Court the petitioners concede that Dr. Lisowitz unequivocally testified during direct examination that Claimant's disability was caused by his November 2, 1973, accident at Hass, but assert that Dr. Lisowitz's subsequent testimony during cross-examination that he could not be "100 percent" sure that the chemicals Claimant inhaled could cause brain damage, made his entire testimony equivocal. We have held, however, that mere conflicts in testimony as to causation do not make such testimony equivocal. Breen v. Pennsylvania Crime Commission, 52 Pa. Commw. 41, 415 A.2d 148 (1980); see also American Refrigerator Equipment Co. Furthermore, we have recognized that the "referee's unique fact-finding function commits to him alone questions of credibility and choice between conflicting medical testimony, including a witness's inconsistent testimony." Breen, 52 Pa. Commw. at 44-45, 415 A.2d at 150; Sears Roebuck Co. v. Workmen's Compensation Appeal Board, 48 Pa. Commw. 161, 409 A.2d 486 (1979).
In the present case the referee, in the exercise of his fact-finding function, chose to accept as credible that portion of Dr. Lisowitz's testimony in which the doctor stated unequivocally that Claimant's disability was caused by his November 2, 1973, accident at Hass. Since that portion of Dr. Lisowitz's testimony constituted, in our view, sufficient competent evidence to support the Board's finding of causation, we believe the Board's finding on this issue must be affirmed.
Finally, we note that we also find no merit in the petitioners' allegation that the Board should have disregarded Dr. Lisowitz's testimony since he was not an expert toxicologist. The record shows that Dr. Lisowitz was well qualified to testify as to the causes of organic brain syndromes, and we have held that the fact that an expert medical witness is not a specialist "in no way affects his competency but only goes to the weight to be given his testimony." Workmen's Compensation Appeal Board v. Branch Motor Express, 18 Pa. Commw. 262, 264, 334 A.2d 847, 848 (1975).
Accordingly we enter the following
ORDER
AND NOW, December 7, 1981, the Opinion and Order of the Workmen's Compensation Appeal Board, dated June 12, 1980, Docket No. A-78290, is affirmed.
Although I concur with the result reached in this case, I must disagree with the majority's statement that the unequivocal nature of medical testimony is an issue involving the referee's discretion as a factfinder in choosing between conflicting testimony by the medical witness. I believe that the determination as to whether or not medical testimony is unequivocal is a question of the competency, not the credibility, of the evidence and is to be decided by this Court based upon our review of the entirety of the physician's testimony. See, e.g., Wilkes-Barre, City v. Workmen's Compensation Appeal Board, 54 Pa. Commw. 230, 420 A.2d 795 (1980); Roeberg Enterprises, Inc. v. Workmen's Compensation Appeal Board, 42 Pa. Commw. 308, 400 A.2d 911 (1979). My review of the record here leads me to conclude that the testimony of Dr. Lisowitz was unequivocal when considered in its entirety, and so I would also affirm the Board's order as does the majority, but I cannot join in the rationale of the opinion.