stating that “[t]he rationalization of a witness’[s] testimony and the acceptance of those portions thereof on which to make findings . . . is the province of the [fact-finder]” and reiterating that “[t]he appearance of inconsistencies in . . . testimony does not render that testimony equivocal.”
How later courts described this case
- stating that “[t]he rationalization of a witness’[s] testimony and the acceptance of those portions thereof on which to make findings . . . is the province of the [fact-finder]” and reiterating that “[t]he appearance of inconsistencies in . . . testimony does not render that testimony equivocal.”
- stating that "[t]he rationalization of a witnesses] testimony and the acceptance of those portions thereof on which to make findings ... is the province of the [fact-finder]” and reiterating that "[t]he appearance of inconsistencies in ... testimony does not render that testimony equivocal.”
- testimony that “something” aggravated claimant’s back problem and that the work incident “could” be that cause was equivocal and incompetent to prove causation where expert never expressed opinion that the work incident was the cause
- the supposed facts forming the basis of a medical expert’s opinion must be proven by competent evidence
Written by the judges who cited it.
The opinion
SMITH, Judge,
dissenting.
I dissent from the majority decision to affirm the Workmen’s Compensation Appeal Board’s order as to Claimant’s entitlement to benefits. Claimant has not demonstrated by unequivocal medical expert testimony that his claimed injuries were work-related or that they were caused by an incident on March 26, 1991. Even the referee conceded that there was “much confusion” in the doctors’ testimony relative to the history of a specific work incident. To establish causation where there is no obvious causal connection between an injury and the work place, a claimant must produce unequivocal medical testimony to establish that connection. Cardyn v. Workmen’s Compensation Appeal Board (Heppenstall), 517 Pa. 98 , 534 A.2d 1389 (1987); Borough of Media v. Workmen’s Compensation Appeal Board (Dorsey), 134 Pa.Commonwealth Ct. 573, 580 A.2d 431 (1990).
In determining the legal sufficiency of medical testimony, this Court must determine whether the expert has testified that the complained of condition in the expert’s opinion did result from the alleged cause. A less direct expression of opinion fails to satisfy the standard of proof and does not constitute legally competent evidence. Cardyn; Lewis v. Commonwealth, 508 Pa. 360 , 498 A.2d 800 (1985).
*91 The majority does recognize that the testimony of one of Claimant’s medical witnesses, Dr. Yaros, is equivocal and disagrees with the Board in this respect. However, the other medical witness, Dr. Gendell, treated Claimant on referral by Dr. Yaros and relied upon his information. Dr. Yaros repeatedly testified that Claimant gave no history during the initial office exam on March 27, 1991 of a specific work incident occurring the day before on March 26, 1991; Dr. Yaros’ nurse also took a history from Claimant who stated that his low back pain began a few months ago after his prescription for pain medication ran out; Dr. Yaros did not know if Claimant’s earlier back problems caused the present complaints; and his symptoms which were consistent with a herniated disc began two months prior to the initial exam date.
Dr. Gendell testified that he examined Claimant in April 1991 and that Claimant related a history of back and leg discomfort. The doctor had no specific recollection of a work incident nor did his office notes indicate a work incident; he learned from subsequent histories about a work incident involving Claimant’s use of a prybar at work; and he was unaware until the date of his deposition that Claimant had a previous history of back problems “apparently a few months” before March 1991. The doctor also stated when presented with a hypothetical that he would have no ability to render an opinion about the cause of a person’s back and leg discomfort assuming an absence of a history of a specific industrial accident, history of low back pain and radicular pain a few months before March 1991, an office visit a few months after the Claimant’s prescription for pain medication ran out, and a history of taking medication for low back pain prior to March 1991.
In Lewis , the Court stated that expert testimony must be viewed as a whole to determine whether it represents an unequivocal statement as to causation, and if the medical expert’s testimony is less than positive or is based on possibilities, it is not unequivocal. See also Cyclops Corp./Sawhill Tubular Div. v. Workmen’s Compensation Appeal Board *92 (Paulsen), 158 Pa.Commonwealth Ct. 595, 632 A.2d 617 (1993). Examining the medical witnesses’ testimony as a whole, and without taking “a few words out of context,” it is apparent that the testimony does not express the unequivocality required to constitute competent evidence as to causation. The doctors used statements that were less than positive, i.e., Claimant’s injury could have been caused by the incident, was possibly aggravated by the injury, could have aggravated a pre-existing condition; and something occurred in January 1991 to cause the change in Claimant’s symptoms of back and leg pain dating back to 1988. This record does not support a claim for benefits.