Giant Eagle, Inc. v. Workmen's Compensation Appeal Board

SILVESTRI, Senior Judge,

dissenting.

The majority concludes that Giant Eagle simply has not met its burden of proof in this case. In so concluding, the majority determined that the record as a whole contains substantial evidence1 to support the referee’s conclusion that Chambers’ disability has not ceased. I disagree with the majority’s conclusion and I respectfully dissent.

The majority correctly notes that, in a termination proceeding under Section 413 of the Act, 77 P.S. § 772, it is well established that the employer has the burden of demonstrating by substantial evidence that the claimant’s work-related disability has ceased. Hebden v. Workmen’s Compensation Appeal Board (Bethenergy Mines, Inc.), 142 Pa.Commonwealth Ct. 176, 597 A.2d 182 (1991), reversed on other grounds, 534 Pa. 327, 632 A.2d 1302 (1993). However, if the disability has not ceased, the employer has the burden, in the alternative, to either demonstrate that the claimant is able to return to his regular job without any loss of earning power or to show a lack of a causal connection between the disability and the compensable, work-related injury. Id. It is important to remember that the methods of proving entitlement to a termination are in the alternative, and where, as here, there is substantial evidence that the work-related disability has ceased, the employer is not required to establish work availability or to prove the lack of any causal connection. See Laird v. Workmen’s Compensation Appeal Board (Michael Curran & Associates), 137 Pa.Commonwealth Ct. 206, 585 A.2d 602 (1991).

*47The majority also correctly notes that our scope of review is limited to determining whether an error of law was committed, whether any necessary findings of fact are not supported by substantial evidence, or whether constitutional rights have been violated. Murphy v. Workmen’s Compensation Appeal Board (Ames Department Store), 146 Pa.Commonwealth Ct. 366, 605 A.2d 1297 (1992). While a referee is permitted to accept or reject any witnesses’ testimony, in whole or part, including the testimony of medical witnesses, Kraemer v. Workmen’s Compensation Appeal Board (Perkiomen Valley School District), 82 Pa.Commonwealth Ct. 469, 474 A.2d 1236 (1984), a referee must examine the testimony as a whole and arrive at a decision based upon the entirety of the testimony. Bailey v. Workmen’s Compensation Appeal Board (Lawton Feed & Supply, Inc.), 105 Pa.Commonwealth Ct. 106, 523 A.2d 415 (1987). A reviewing court must simply determine whether, upon consideration of the evidence as a whole, the referee’s findings have the requisite measure of support in the record. Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992).

The referee found that Chambers continues to remain totally incapable of performing her former job as a meat wrapper for Giant Eagle and remains disabled as a result of residual pain and numbness in her right extremity. The referee further found that Chambers has continuing effects of her electric shock injury and has sustained a cervical injury causing pain and numbness in the neck and right extremity as a result of the work-related injury.

The majority notes that, with regard to the question of Chambers’ continued disability, Chambers herself testified that she continues to experience pain and does not feel capable of returning to work. The majority, relying on this Court’s opinions in JAB Enterprises, Inc. v. Workmen’s Compensation Appeal Board (Haehn), 79 Pa.Commonwealth Ct. 638, 470 A.2d 210 (1984) and Hygrade Food Products v. Workmen’s Compensation Appeal Board, 62 Pa.Commonwealth Ct. 448, 437 A.2d 89 (1981), holds that such pain is sufficient to support a finding of continued disability. While the existence of pain, *48even without evidence of an anatomical cause, can support a finding of continued disability, such evidence does not in and of itself require a finding that the claimant remain disabled.2 See Kerns v. Workmen’s Compensation Appeal Board (Colt Resources, Inc.), 149 Pa.Commonwealth Ct. 268, 613 A.2d 85 (1992) (claimant’s assertion of continuing pain does not require finding that claimant remains disabled; finding that claimant is no longer disabled may be made where physician has stated that claimant is fully recovered and able to return to work and that there is no objective abnormality to support claimant’s subjective symptoms such as pain).

The record herein, when viewed as a whole, does not support a finding that Chambers’ disability had not ceased. At his March 28,1990 deposition, Dr. Kathpal testified that he first treated Chambers for her electrical shock injury on March 19, 1989 at which time she complained of tingling, numbness and pain in her hands, arms, and legs, with the sensations being more marked on the right side. Based upon his initial examination of Chambers, Dr. Kathpal opined that her symptoms were secondary to the electric shock and that she would probably be disabled for a couple of months. On July 25, 1989, Chambers experienced increased pain in her right arm while decorating a cake at home. An electromyography (EMG) test revealed that Chambers had carpal tunnel *49syndrome3 in her right hand. Dr. Kathpal opined that the carpal tunnel syndrome was not related to the original electrical shock injury of May 1, 1989 nor was it brought about by Chambers’ duties as a meat wrapper at Giant Eagle. Dr. Kathpal reviewed a copy of a job analysis of Chamber’s duties as a meat wrapper; the analysis, which was dated July 30, 1989, was prepared by Interpose, a job and vocational analysis company. Dr. Kathpal recommended that based upon his examinations of Chambers and a review of the test results and job analysis, Chambers should have surgery done for the carpal tunnel syndrome before she could go back to work. Dr. Kathpal examined Chambers on September 19, 1989 and signed a physician’s affidavit of recovery form therein stating that Chambers had fully recovered from her electrical shock injury and was able to resume, without limitation, her previous occupation of part-time meat wrapper. Dr. Kathpal further testified that while Chambers has continuing effects of her electric shock injury and may occasionally experience a twinge of tingling or numbness, he felt that these effects would not hamper her return to work.

Dr. Kathpal also testified that Chambers does have limitations as a result of the carpal tunnel syndrome but that this condition is not related to her May 1,1989 injury. In a report dated October 13,1989, Dr. Kathpal reiterated that Chambers had recovered from her electric shock injury but she continued to suffer from carpal tunnel syndrome which prevented her from returning to work. In a report to Interpose dated November 8, 1989, Dr. Kathpal opined that Chambers could perform medium duty work and was capable of resuming her job at Giant Eagle on a part-time basis.4 Dr. Kathpal noted that such limitations were only temporary until Chambers recovered from the carpal tunnel syndrome.

*50At his March 12, 1991 deposition, which was subsequent to his signing of the physician’s affidavit of recovery, Dr. Kathpal reiterated that when he examined Chambers in September of 1989, her symptoms related to the electric shock injury had improved and that was the reason why he released her to go back to work. (R.R. 116a-117a.) Dr. Kathpal also testified that he resumed treating Chambers on June 12,1990, at which time she complained of persistent pain and numbness in her right arm and also of neck pain. Dr. Kathpal further testified that he noted that Chambers had limitation of movement of her neck at that time. A magnetic scan of Chambers’ cervical spine revealed a mild compression at the sixth and seventh vertebra due to bulging of the disc. In a report dated October 10, 1990, Dr. Kathpal opined that Chambers injured her neck at the same time she suffered the electric shock injury of May 1, 1989. However, when asked on direct examination how he arrived at such a conclusion, Dr. Kathpal responded as follows:

It’s really difficult to separate what was causing her numbness. The most immediate pain for which she came initially was the electric shock, but since she complained of neck pain at a later date and we did not have any other incident, it was surmised that it may have occurred at the same time, but I do not have a very definite proof of that. (Emphasis added.)

(R.R. 111a.)

Dr. Kathpal further stated on cross-examination that prior to June 12, 1990, he was unaware of any history of neck complaints by Chambers. Dr. Kathpal also conceded that there was not any documentation which would relate Chambers’ neck problems back to her injury of May 1, 1989.

While Dr. Kathpal did testify that Chambers sustained a cervical injury causing pain and numbness in the neck and right extremity as a result of the work-related injury, at no time did he ever testify that Chambers was in any way disabled or incapable of performing her former job as a result of the cervical injury. Dr. Kathpal never testified as to the extent of Chambers’ limitation of movement of her neck nor did he ever offer an opinion as to whether such a condition *51would impose any restrictions on Chambers’ ability to resume her job with Giant Eagle. Significantly, Dr. Kathpal was never asked nor did he ever testify as to his opinion whether Chambers was not able to return to work as a result of the cervical injury.

Dr. Kathpal merely acknowledged that some of the symptoms experienced by Chambers in September of 1989, which he originally attributed to carpal tunnel syndrome, could have possibly been caused, at least in part, by the bulging disc. Dr. Kathpal never testified that Chambers remained totally incapable of performing her former job or that she remained disabled as a result of residual pain and numbness in her right extremity. At best, the record as a whole supports a finding that Chambers remains temporarily, partially disabled as a result of the carpal tunnel syndrome. Be that as it may, if a disability is present but no longer caused by the compensable injury, there is no right to continued benefits and the employer is entitled to a termination. McGinley v. Workmen’s Compensation Appeal Board (Acme Markets, Inc.), 77 Pa.Commonwealth Ct. 214, 465 A.2d 147 (1983).

Accordingly, the findings of the referee that Chambers remains disabled and totally incapable of performing her former job are not supported by substantial evidence and the referee erred by concluding that Giant Eagle failed to establish that Chambers’ disability had ceased. Therefore, I would vacate the order of the Board and remand with directions to reverse the order of the referee and to enter an order granting the termination petition.

. Substantial evidence exists when there is relevant evidence in the record which a reasonable person might accept as supporting the conclusion. Gallo v. Workmen’s Compensation Appeal Board (United Parcel Service), 95 Pa.Commonwealth Ct. 158, 504 A.2d 985 (1986).

. In JAB Enterprises, the Court merely noted that the lack of an objective basis for pain does not establish that the disability has ended or been reduced. The Court based its determination to affirm the denial of the termination petition on the fact that the claimant's treating physician refused to offer an opinion as to whether the claimant was capable of returning to work and thus concluded that there was not sufficient evidence to support the referee’s decision to suspend compensation. See Shepherd v. Workmen’s Compensation Appeal Board, 66 Pa.Commonwealth Ct. 101, 443 A.2d 862 (1982) (termination decision was upheld despite the evidence of a continuation of subjective symptoms on the basis of medical testimony that the claimant had fully recovered sufficiently to return to work). In Hygrade, there was medical testimony that claimant had developed carpal tunnel syndrome as a result of the accident and that while she could physically perform her duties, she could suffer pain so severe as to interfere with her work. The Court in Hygrade concluded that such evidence was sufficient to support the referee’s determination of total disability.

. Dr. Kathpal testified that carpal tunnel syndrome is a condition which results from pressure on the median nerve as it passed from the wrist to the hand. Possible symptoms of carpal tunnel syndrome are tingling, numbness and pain in the fingers; however, such symptoms could extend throughout the entire arm.

. Dr. Kathpal opined that Chambers was capable of working thirty-six hours a week/six hours a day for six days.