Opinion
No. 1240 C.D. 2011
05-10-2012
Worldwide Flight Services, Petitioner v. Workers' Compensation Appeal Board (Carson, Jr.), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Worldwide Flight Services (Employer) petitions for review of the June 22, 2011, decision of the Workers' Compensation Appeal Board (Board) reversing the decision of a workers' compensation judge (WCJ) to terminate the workers' compensation benefits of James F. Carson, Jr. (Claimant). For the reasons that follow, we reverse.
The facts in this case are not disputed. Claimant sustained a work-related injury to his right shoulder on June 22, 2006. After the injury, Claimant continued to work for Employer in a modified duty position for approximately eighteen months. In December 2007, however, Claimant stopped working because he was having trouble moving his right shoulder and lifting his arm. Pursuant to a notice of compensation payable describing the injury as "right shoulder impingement syndrome," Claimant began receiving temporary total disability benefits on February 8, 2008. On September 2, 2008, Employer filed a petition to terminate Claimant's benefits, alleging that Clamant was fully recovered from his work injury and was able to return to unrestricted work as of July 17, 2008.
In support of its termination petition, Employer presented the deposition testimony of Nasimullah Rehmatullah, M.D., a board certified orthopedic surgeon, who examined Claimant on September 28, 2006, November 20, 2007, and July 17, 2008. According to Dr. Rehmatullah, Claimant's shoulder impingement showed improvement at each of these examinations. (WCJ's Findings of Fact, No. 3.) Dr. Rehmatullah opined that, as of the final examination on July 17, 2008, some "signs of minor impingement remained," but Claimant had achieved a "full functional recovery" such that he could return to his pre-injury job without restriction. (Id.)
Claimant testified that he continued to experience pain in his right shoulder, along with decreased strength. (Reproduced Record (R.R.) at 24a-25a.) Claimant also presented the deposition testimony of Richard Gehl, M.D., an orthopedic surgeon. According to Dr. Gehl, Claimant had impingement syndrome of the right shoulder and a small rotator cuff tear. (R.R. at 54a, 56a-57a.). Dr. Gehl opined that Claimant continued to suffer from the effects of the right shoulder injury; however he admitted that his opinion was based on Claimant's subjective complaints, (R.R. at 71a), and that Claimant's symptoms were out of proportion to his objective findings. (R.R. at 62.)
The WCJ found Claimant to be credible in part; however, she rejected Claimant's testimony to the extent that it conflicted with other credible evidence of record. The WCJ rejected the testimony of Dr. Gehl, noting that Dr. Gehl's opinion was based on Claimant's subjective complaints. The WCJ accepted the testimony of Dr. Rehmatullah as credible and found that Claimant had made a full functional recovery from his work injury. Based upon these credibility determinations, the WCJ concluded that Employer met its burden of proving that Claimant was fully recovered from his work injury. Accordingly, the WCJ granted Employer's Termination Petition and terminated Claimant's benefits as of July 17, 2008.
The Judge's Order also denied the Claimant's review petition. (R. 164a). The Board affirmed the denial of the Review Petition. (R. 172a). Claimant has not appealed the Board's Order; as a result, no issues concerning the Review Petition are presently before this Court.
Claimant appealed to the Board, which reversed the WCJ's order on the basis that Employer had the burden of showing "a full recovery as opposed to a functional recovery with residuals." (Board's op. at 4.)
On appeal to this Court, Employer argues that the Board erred in differentiating between a "full functional recovery" and a "full recovery" and in concluding that Employer did not meet its burden of proof. We agree.
Our scope of review is limited to determining whether findings of fact are supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. --------
According to Employer, the credible evidence established that Claimant did not require any further medical treatment and was capable of returning to work without restrictions; thus, termination of benefits was appropriate. In support of its position, Employer cites Connor v. Workmen's Compensation Appeal Board (Super Sucker, Inc.), 624 A.2d 757 (Pa. Cmwlth. 1993). In Connor, the employer's expert opined that the claimant had a loss of muscle mass in his thigh, which he characterized as a physical deformity affecting only the claimant's appearance. The expert further opined that he believed the claimant was functionally the same as before the work injury and that he could perform all physical activities he performed before the work injury occurred. This Court affirmed the termination of workers' compensation benefits, holding that the employer's evidence was sufficient to satisfy its burden of proof.
Employer also relies on this Court's decision in Wagner v. Workers' Compensation Appeal Board (O'Malley Wood Products, Inc.), 805 A.2d 683 (Pa. Cmwlth. 2002). In Wagner, the claimant had to have his L4 and L5 vertebrae fused as a result of his work injury. The claimant asserted that, as a result of the surgery, he had permanent impairment to his back. However, Employer's medical expert, credited by the Board, opined that the claimant had a full, uncompromised range of motion and that his physical abilities had returned to what they were before the injury. Accordingly, this court affirmed the termination.
In order to terminate benefits, the employer must establish that all disability related to a compensable injury has ceased. Pieper v. Ametek-Thermox Instruments Division, 526 Pa. 25, 584 A.2d 301 (1990). In workers' compensation law, the term "disability" does not refer to the claimant's medical condition. Rather, it is synonymous with "loss of earning power." Potere v. Workers' Compensation Appeal Board (Kemcorp), 21 A.3d 684 (Pa. Cmwlth. 2011). Thus, the employer only need establish that the work injury has resolved to the point that the claimant can return to work without restriction, not that the claimant is "fully recovered." McFaddin v. Workmen's Compensation Appeal Board (Monongahela Valley Hospital), 620 A.2d 709 (Pa. Cmwlth. 1993).
Here, we agree that Employer met its burden of proving that all disability related to Claimant's work-related injury had ceased. Dr. Rehmatullah testified that Claimant had achieved a "full functional recovery" such that he could return to his pre-injury job without restriction. Although Dr. Rehmatullah made reference to a lingering "sign" of impingement, he clearly believed that Claimant was able to return to his pre-injury job without restriction. Pursuant to Wagner and Connor, this evidence is sufficient to meet Employer's burden in the termination proceeding.
Moreover, Dr. Rehmatullah signed a "Physician's Affidavit of Recovery" indicating that Claimant had fully recovered from his right shoulder injury and was capable of returning to his pre-injury job without restriction, (R.R. at 94a.) An affidavit of recovery indicating that the claimant has had a "full recovery" can remedy the omission of that exact phrase in a medical expert's testimony. McFaddin.
Claimant counters that Dr. Rehmatullah's testimony was equivocal because on the one hand, he testified that Claimant had a "sign" of impingement as of the date of his last examination, but also that Claimant had reached a full functional recovery. The question of whether a medical expert's testimony is equivocal is a question of law, fully reviewable by this Court. Ernst v. Workers' Compensation Appeal Board (Rollins Transp. System), 720 A.2d 1085 (Pa. Cmwlth.). In reviewing a medical expert's testimony, the entire testimony must be taken as a whole. Id. After a review of the record, we disagree that Dr. Rehmatullah's testimony was equivocal. Dr. Rehmatullah testified that Claimant's right shoulder had regained its full range of motion as of the date of his last examination, (R.R. at 133a), and that, even with a "mildly positive impingement sign," Claimant's return to full range of motion did not leave him with any "functional disability." (R.R. at 140a.) Further, he testified unequivocally that Claimant was capable to return to his pre-injury work without restriction of any kind. (R.R. at 140a-41a.)
The WCJ accepted Dr. Rehmatullah's testimony as credible and based her decision to terminate benefits on this evidence. We see no error in the WCJ's decision and, thus, we agree with Employer that the Board erred in reversing the WCJ's decision.
Accordingly, we reverse.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 10th day of May, 2012, the June 22, 2011, order of the Workers' Compensation Appeal Board is hereby reversed.
/s/_________
PATRICIA A. McCULLOUGH, Judge