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Roberts v. Workers' Compensation Appeal Board11/6/2002
Dianne Roberts petitions for review of the order of the Workers' Compensation Appeal Board affirming the termination of her benefits.
Roberts began receiving partial disability benefits pursuant to a notice of compensation payable for a March 14, 1997 work-related injury to her left knee while working as a registered nurse for Staff Builders. Her benefits were reduced when she returned to work later in 1997. On August 11, 1999, her employer filed a termination petition alleging that she was fully recovered from the work injury as of June 30, 1999. In February 2000, Roberts filed a petition to reinstate benefits alleging that she was again totally disabled as a result of left knee replacement surgery necessitated by the March 1997 injury. Roberts returned to work in March 2000 and received partial disability benefits. In April 2000, Roberts underwent right knee replacement surgery and remained out of work until June 24, 2000, at which time she again began receiving partial disability benefits.
The petitions were consolidated for disposition. Before the workers' compensation judge, the employer presented the medical testimony of Dr. Alexander Sapega, an orthopedic surgeon specializing in knee injuries. Roberts testified and presented the medical testimony of Dr. Bruce Menkowitz, also an orthopedic surgeon specializing in treatment of the knee. The judge credited Dr. Sapega's testimony that Roberts was fully recovered from her work injury as of June 30, 1999 and that her current disability results from pre-existing bilateral osteoarthritis of the knees. The judge rejected Dr. Menkowitz's testimony as unpersuasive to the extent that it conflicted with Dr. Sapega's testimony. Dr. Menkowitz acknowledged significant degenerative changes in both of Roberts's knees. Based on the credited evidence, the judge denied reinstatement and granted the employer's termination petition effective June 30, 1999. The Board affirmed.
As she did before the Board, Roberts argues to this Court that Dr. Sapega's testimony is not competent on the issue of her full recovery because Dr. Sapega's medical opinion was premised on a diagnosis of her original injury as a temporary exacerbation of her underlying arthritis and did not recognize her original work injury as a torn meniscus. Roberts cites to GA & FC Wagman, Inc. v. Workers' Compensation Appeal Board (Aucker), 785 A.2d 1087 (Pa. Cmwlth. 2001), for the proposition that if an employer's medical expert does not recognize the injury accepted in the notice of compensation payable, it is impossible for the medical expert to give an opinion that the claimant fully recovered from that injury.
In a termination proceeding, the employer has the burden of proving that all disability related to the work injury has ceased, and where the claimant complains of continued pain, the employer's burden is met when its medical expert testifies unequivocally and within a reasonable degree of medical certainty "that the claimant is fully recovered, can return to work without restrictions and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury." Udvari v. Workmen's Compensation Appeal Board (USAir Inc.), 550 Pa. 319, 327, 705 A.2d 1290, 1293 (1997). If the judge credits this testimony, the termination of benefits is proper. Id.
In Wagman, we reversed a termination of benefits where the credited medical expert testified only that the claimant had suffered a different injury from that acknowledged in the notice of compensation payable and that the claimant had fully recovered from that different injury. We held that in order to terminate benefits, the employer must pre
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