Gillyard v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Judge COHN JUBELIRER.

I respectfully dissent. I would hold that Employer’s expert provided substantial evidence to meet the burden of proof required to support its petition for termination of Claimant’s benefits.

The majority determines that Dr. Bala-subramanian’s testimony is unable to support the conclusion that Claimant fully recovered from his established, work-related injury because the doctor “expressly testified that Claimant suffered only lumbar strain and sprain as the result of his work injury and that Claimant has recovered only from that lumbar strain and sprain.” (Majority Op. at 996) (emphasis in original). I believe that by relying on only one particular portion of Dr. Balasubramani-an’s deposition, (Majority Op. at 995-96) (quoting R.R. at 39a-40a), the majority presents an inaccurate view of his testimony, and misapplies this Court’s approach to a substantial evidence analysis.

*998 WCJ Lincicome succinctly summarized the deposition testimony of Dr. Balasubra-manian in her findings as follows:

Dr. Balasubramanian opined that he was of the opinion that Claimant had suffered a lumbosacral strain and sprain and he had recovered from that injury. Although WCJ Hines issued a decision with regard to another Termination Petition in this matter on May 4, 1998 wherein he described the injury as including disc bulges at two levels with chronic right-sided radiculopathy, Dr. Balasubramanian did, indeed, offer an opinion ivith regard to that particular diagnosis. Specifically, Dr. Balasubra-manian testified that on clinical examination, Claimant had no signs and symptoms of right-sided radiculopathy. In fact, Dr. Balasubramanian reported that Claimant told him that on the date of his examination of May 14, 2001, he had no complaints of right-sided radiculopathy. The only finding Dr. Balasubramanian found on examination was a nonspecific numbness which made no anatomic sense in Claimant’s lower right leg. Dr. Balasubramanian specifically testified that Claimant could, indeed, return to work at his pre-injury position based upon his clinical examination.

(WCJ Lincicome’s Findings of Fact, No. 5) (emphasis added) (see also Dep. of Dr. Balasubramanian at 10, 14-19, 38-39, 42). Clearly, the WCJ found that Employer’s expert adequately addressed all of Claimant’s work-related injuries — as described in the original NCP (lumbar strain and sprain) and as judicially determined by WCJ Hines (disc bulges at two levels with chronic right-sided radiculopathy). Furthermore, the facts in this case are distinguishable from Wagman, because, here, Dr. Balasubramanian did not testify that Claimant never had a work injury. Compare To v. Workers’ Compensation Appeal Bd. (Insaco, Inc.), 819 A.2d 1222, 1225 (Pa.Cmwlth.2003) (noting that due to claimant’s significant symptom magnification, the doctor was attempting to ascertain exactly how claimant suffered an injury in the manner described when the doctor’s physical examination did not support claimant’s complaints).

Here, WCJ Lincicome found Dr. Balasu-bramanian’s testimony credible and persuasive as to Claimant’s work-related injury and recovery, because she evaluated his testimony as a whole, and found it to be supported by objective findings. See, e.g., Farquhar v. Workmen’s Compensation Appeal Bd. (Coming Glass Works), 515 Pa. 315 , 528 A.2d 580 (1987) (noting that a medical witness’s entire testimony must be reviewed and taken as a whole and a final decision should not rest upon words taken out of context of the entire testimony).

In Hoffmaster v. Workers’ Compensation Appeal Bd., our Court described the standard of review for substantial evidence as follows:

Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. In performing a substantial evidence analysis, this court must view the evidence in a light most favorable to the party who prevailed before the factfin-der. Moreover, we are to draw all reasonable inferences which are deducible from the evidence in support of the fact-finder’s decision in favor of that prevailing party. Furthermore, in a substantial evidence analysis where both parties present evidence, it does not matter that there is evidence in the record which supports a factual finding contrary to that made by the WCJ, rather, the pertinent inquiry is whether there is any evidence which supports the WCJ’s factual finding. It is solely for the WCJ, as the factfinder, to assess credibility and *999 to resolve conflicts in the evidence. In addition, it is solely for the WCJ, as the factfinder, to determine what weight to give to any evidence. As such, the WCJ may reject the testimony of any witness in whole or in part, even if that testimony is uncontradicted.

Id., 721 A.2d 1152, 1155-1156 (Pa.Cmwlth.1998) (citations omitted). I believe that Employer’s expert provided substantial evidence to meet the burden of proof required to support its petition for termination of Claimant’s benefits.

Both WCJ Lincicome and the Board did a thorough job of reviewing the testimony in this case, and we should not disturb their decisions. Therefore, I would affirm the decision of the Board. 1

Judge LEAVITT joins in this dissenting opinion.

. Because I would conclude that Employer met its burden of proving that Claimant was fully recovered from his 1992 work-related injury, I would also conclude that Employer’s contest was reasonable.