Giant Eagle, Inc. v. Workmen's Compensation Appeal Board
Giant Eagle, Inc. v. Workmen's Compensation Appeal Board
Opinion of the Court
Giant Eagle, Inc. (Giant Eagle) petitions for review
On December 4, 1989, Giant Eagle filed a petition for termination of compensation alleging that, based upon a September 19, 1989 examination by Gurbachan S. Kathpal, M.D., Chamber’s treating physician, Chambers had fully recovered from her May 1, 1989 injury. Chambers filed an answer denying all material allegations and maintaining that she remained temporarily, totally disabled as a result of that injury. Accordingly, hearings were held before a referee.
In support of its termination petition, Giant Eagle presented medical records and an affidavit of recovery, all prepared by Dr. Kathpal,
On cross-examination, Dr. Kathpal discussed the results of a somatosensory evoked responses (SER) test which he had performed on Chambers. Dr. Kathpal explained that while an EMG tested nerves outside the spinal cord, the SER test is concerned with the conduction of responses within the spinal cord and brain. Dr. Kathpal reported that the SER test results from Chambers’ right arm and leg were abnormal, suggesting that her problem was in the spinal cord rather than in the nerves. (R.R. at 75a.) Finally, Dr. Kathpal opined that as of September 19,1989, Chamber’s carpal tunnel syndrome prevented her from returning to her regular work but that all the symptoms of her electric shock had “pretty much” subsided. (R.R. at 82a, 97a.) He agreed that Chambers would still experience an occasional twinge of tingling or numbness but felt that these would not hamper her return to work. (R.R. at 82a.) Dr. Kathpal also stated that whatever was causing Chamber’s problem in her right hand, that was the cause of her disability at this time. (R.R. at 82a.)
A subsequent hearing was held on December 3, 1990, at which Chambers testified on her own behalf.
In addition to her own testimony, Chambers also offered two additional reports of Dr. Kathpal, dated September 24, 1990 and October 10,1990 respectively. In the September 24 report, Dr. Kathpal related that he had seen Chambers again in June of 1990 because she had been having a lot of neck pain and restricted movement of her cervical spine. He then reported that a magnetic scan of the cervical spine had revealed a mild compression at the C-6/C-7 level due to bulging of the disc. (R.R. at 134a.) In the report dated October 10, Dr. Kathpal wrote, “I feel Mrs. Chambers did injure her neck at the same time she suffered the electrical shock injury on May 1, 1989. All these symptoms pretty much started during that time and a significant degree of pulling can result in various kinds of injuries.” (R.R. at 135a.)
Along with these records, Chambers recalled Dr. Kathpal as a witness and offered his deposition testimony taken on March 12,1991, this time on Chambers’ behalf. During direct examination, Dr. Kathpal testified that Chambers returned to him in June of 1990 at the suggestion of her physical therapist because of persistent pain in her right arm and neck. Upon re-examination, Dr. Kathpal found that Chambers had a disc out of place between the 6th and 7th vertebrae which he stated may have contributed to the arm and hand problems that Chambers had complained of “all along.” (R.R. at 110.)
Based upon this evidence, the referee made the following pertinent findings:
5. Based upon the testimony of Dr. G.S. Kathpal, who testified in this matter for the defendant and subsequently testified on a second occasion for the claimant, your Referee finds as a fact that the claimant continues to remain totally incapable of performing her former job as a meat wrapper for the defendant. Further, your Referee finds as a fact, based upon Dr. Kathpal’s testimony, that the claimant remains disabled as a result of residual pain and numbness in her right extremity. Your Referee does not find that Dr. Kathpal’s testimony supports a finding or conclusion that the claimant has fully recovered from her work injury. To the contrary, your Referee finds from Dr. Kathpal’s testimony and reports that the claimant has continuing effects of her electrical shock injury, and further has sustained a cervical injury causing pain and numbness in the neck and right extremity as a result of the work-related injury. In making this finding, your Referee has also considered the*42 testimony of the claimant’s therapist, Joseph Bradley, and accepts the same as credible.
7. Your Referee finds as a fact that the defendant has failed to prove by sufficient, competent and credible evidence that the claimant has recovered from her work-related injury or that her disability has changed in any way.
9. Your Referee finds as a fact that the claimant has incurred and continues to incur reasonable and necessary expenses for the treatment of her work-related injury pursuant to Section 306(f) of the Pennsylvania Workmen’s Compensation Act, as amended. Your Referee finds as a fact all of the claimant’s treatment with Dr. Kathpal and Joseph Bradley is causally related to claimant’s work-related injury of May 1, 1989. The defendant remains responsible for the payment of all such medical expenses.
(Referee’s Findings of Fact Nos. 5, 7, and 9; R.R. at 190a-191a.)
Having determined that Chambers’ disability did not cease and terminate, the referee concluded, as a matter of law, that Giant Eagle failed to meet its burden of proof and dismissed Giant Eagle’s termination petition.
On appeal,
It has long been held that the burden of proof in a termination petition is on the employer to show that all disability related to the compensable injury has ceased and, if a claimant is currently disabled, the employer must show a lack of causal connection between that disability and the compensable injury. McGee v. L.F. Grammes & Sons, 477 Pa. 143, 383 A.2d 864 (1978); Iacono v. Workmen’s Compensation Appeal Board (Chester Housing Authority and PMA Group), 155 Pa.Commonwealth Ct. 234, 624 A.2d 814 (1993); Central Pennsylvania Community Action, Inc. v. Workmen’s Compensation Appeal Board (Probeck), 103 Pa.Commonwealth Ct. 278, 520 A.2d 112 (1987); McGinley v. Workmen’s Compensation Appeal Board (Acme Markets, Inc.), 77 Pa.Commonwealth Ct. 214, 465 A.2d 147 (1983). This burden is considerable because disability is presumed to continue until demonstrated otherwise. Olivetti Corp. v. Workmen’s Compensation Appeal Board (Robinson), 75 Pa.Commonwealth Ct. 584, 462 A.2d 934 (1983). Moreover, the burden never shifts to the claimant to prove the existence of a causal connection between his disability and his injury. Probeck; McGinley. In fact, there is no burden on the claimant to prove anything at all because having once established a right to benefits, those
First, with regard to the question of Chambers’ continued disability, we note that Chambers herself testified that she continues to experience pain and does not feel capable of returning to work. We have held that such pain, even without evidence of anatomical cause, is sufficient to support a finding of continued disability. JAB Enterprises, Inc. v. Workmen’s Compensation Appeal Board (Haehn), 79 Pa.Commonwealth Ct. 638, 470 A.2d 210 (1984); Hygrade Food Products v. Workmen’s Compensation Appeal Board, 62 Pa.Commonwealth Ct. 448, 437 A.2d 89 (1981). Indeed, a referee can give more credence to a claimant’s testimony regarding incapacitating pain than to a doctor’s testimony. Hygrade.
As to the medical testimony offered, this case is unusual in that the referee, instead of hearing conflicting medical testimony expressed by different doctors, was presented with the testimony of only one doctor, taken on two different occasions. There is no question that in the March 1990 deposition taken by Giant Eagle, Dr. Kathpal indicated that Chambers had basically recovered from her work injury and that any disability was caused by non-work-related carpal tunnel syndrome.
Giant Eagle also contends, however, that even if Chambers did not fully recover from her May 1, 1989 injury, we must, at the very least, reverse the WCAB insofar as it affirms Chambers’ cervical injury as being work-related. We disagree.
Dr. Kathpal testified that Chambers’ continuing pain and other symptoms had three possible causes: electric shock, carpal tunnel syndrome or cervical injury. Dr. Kathpal opined that Chambers sustained her cervical injury at the same time she received her electric shock; however, he admitted that this connection was surmise on his part and that while he believed it possible, he lacked the documentation to definitively support the relationship. Giant Eagle points to this testimony, maintaining that because it was equivocal, it could not support Chambers’ position that she suffered a work-related cervical injury on May 1,1989. However, the question of whether Dr. Kathpal’s testimony was equivocal concerning the causal relationship between Chambers’ cervical injury and her May 1, 1989 injury is purely academic. Indeed, by his very inability to state conclusively the cause of Chambers’ ongoing symptoms, Dr. Kathpal negates Giant Eagle’s burden and establishes Chambers’ ongoing disability. As previously stated, in the context of a termination petition, Chambers has no burden to prove a causal connection between her compensable injury and her continuing disability. Rather, Giant Eagle had the burden of proving the lack of any causal connection. Iacono; Unity Builders, Inc. v. Workmen’s Compensation Appeal Board, 50 Pa.Commonwealth Ct. 527, 413 A.2d 40 (1980). Because Giant Eagle was unable to present any competent evidence to dissociate Chambers’ cervical injury from her work accident on May 1, 1989, Giant Eagle has failed to meet this burden. Accordingly, we affirm.
AND NOW, this 28th day of December, 1993, the order of the Workmen’s Compensation Appeal Board, dated June 17, 1992, is affirmed.
. This case was reassigned to the opinion writer on May 28, 1993.
. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772.
. Following his September 19, 1989 examination, Dr. Kathpal signed a physician’s affidavit of recovery form indicating that Chambers had recovered from her work injury and could return to her duties at Giant Eagle, although limited because of non-work-related carpal tunnel syndrome. Again, in a report dated October 13, 1989, Dr. Kathpal stated that Chambers' symptoms from her electric shock had improved but that she continued to suffer from carpal tunnel syndrome which prevented her return to work.
. This EMG test was performed by a Dr. Bender; however, another physician, Dr. Frost, also performed an EMG on Chambers and found no evidence of carpal tunnel syndrome. (R.R. at 76a.)
. Chambers also testified briefly at a hearing on February 9, 1990. At that time, Chambers had stopped treating with Dr. Kathpal but stated that she did not feel able to return to work because she still suffered from the effects of her work accident. Chambers testified that she continued to have headaches, pain in her arm and neck and numbness in her fingers.
. Chambers also offered the deposition testimony of Joseph Bradley, a registered physical therapist, who was treating Chambers at the physical therapy clinic. Bradley stated that he first saw Chambers in May of 1990, at which time he performed a brief screening examination and recommended that Chambers return to Dr. Kathpal for further evaluation of a possible cervical spine injury. Chambers did so, and Dr. Kathpal subsequently referred Chambers to Bradley for treatment of her cervical problem. At the time of Bradley’s deposition, Chambers was receiving therapy three times a week for neck pain.
. Contrary to Dr. Kathpal’s testimony, Chambers testified that she informed Dr. Kathpal that she was experiencing neck pain and headaches during the first examination she had with him after the accident. (R.R. at 41a.)
. The referee’s order of June 1, 1991 also vacated and set aside a previous interlocutory order dated February 9, 1990 which had granted Giant Eagle’s request for supersedeas during the pendency of the termination petition proceedings. The same order also directed the reinstatement of compensation benefits plus 10% per annum interest on all deferred payments, awarded costs of $1206.93, directed Giant Eagle to pay all reasonable medical bills, and approved the attorney fee agreement.
. Our scope of review is limited to determining whether an error of law was committed, whether any necessary findings of fact are unsupported by substantial evidence or whether constitutional rights have been
. We note that although in his earlier testimony, Dr. Kathpal stated that Chambers had "pretty much” recovered from her electric shock injury, he acknowledged that Chambers occasionally would still have tingling and numbness.
Dissenting Opinion
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 evidence
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).
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,
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
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.
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
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.
Reference
- Full Case Name
- GIANT EAGLE, INC., Petitioner, v. WORKMEN’S COMPENSATION APPEAL BOARD (CHAMBERS), Respondent
- Cited By
- 28 cases
- Status
- Published