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Saville v. Workers' Compensation Appeal Board8/7/2000
Thomas Saville (Claimant) petitions for review from an order of the Workers' Compensation Appeal Board (Board) which upheld the order of the Workers' Compensation Judge (WCJ) that granted Pathmark Stores, Inc.'s (Employer) termination petition. We affirm.
Claimant was employed as a grocery clerk for Employer stocking shelves. On December 10, 1993, Claimant sustained a low back injury which was accepted as compensable by Employer which issued a Notice of Compensation Payable. Claimant began treating with Dr. LoBianco on March 25, 1994. On March 13, 1997, Claimant underwent an independent medical examination by Dr. Resnick, a board-certified orthopedic surgeon. Dr. Resnick issued a report wherein Dr. Resnick opined that Claimant had fully recovered from his work injury although acknowledging that Claimant had degenerative changes in his lumbar spine unrelated to the work injury and that these changes were not aggravated by Claimant's December 10, 1993 work-injury. Based upon this report Employer filed a termination petition on April 8, 1997. The petition was assigned to a WCJ who conducted proceedings.
At these proceedings Employer presented the testimony of Dr. Resnick who testified that he performed a medical examination of Claimant, reviewed Claimant's medical records and diagnostic studies. Dr. Resnick noted that upon physical examination and testing, Claimant exhibited no abnormalities but for evidence of chronic degenerative changes in Claimant's lumbar spine which were unrelated to Claimant's December 10, 1993 work injury. Dr. Resnick further noted that Claimant had subjective complaints of pain but that there were no objective findings supporting these subjective claims of pain. Accordingly, Dr. Resnick opined that Claimant had fully recovered from his work injury. Dr. Resnick would not release Claimant to return to unrestricted work due to the chronic degenerative changes in Claimant's lumbar spine which was unrelated to Claimant's December 10, 1993 work injury. Employer also presented the testimony of Ms. Cynthia Ladson who testified concerning the offer to Claimant of his pre-injury position as of April 28, 1997, without loss of earnings.
In opposition, Claimant presented his own testimony, wherein Claimant testified that he continued to experience pain and could not work. In addition, Claimant presented the testimony of Dr. LoBianco, a general practitioner. Dr. LoBianco testified that Claimant had not recovered from his work injury and had lingering lumbar radiculopathy and strain. Despite several years of treatment, Dr. LoBianco testified that Claimant's physical examination findings, complaints and disability status remained unchanged.
The WCJ found Dr. Resnick to be more credible than Dr. LoBianco and found that Employer carried its burden to prove that Claimant was fully recovered from his work-injury and so the WCJ granted Employer's termination petition. Claimant appealed to the Board which affirmed. Claimant now petitions this court for review. Appellate review over an order of the Board is limited to determining whether necessary factual findings of the WCJ are supported by substantial evidence, whether constitutional rights were violated and whether an error of law was committed. Udvari v. Workmen's Compensation Appeal Board (U.S. Air), 550 Pa. 319, 705 A.2d 1290 (1997).
The first issue which Claimant presents is: whether the testimony of the employer's medical expert, that he restricted Claimant to modified work, in part because of Claimant's subjective complaints renders his testimony equivocal as to whether Claimant may return to work without restriction, as required by the Pennsylvania Supreme Court in Udvari and, therefor
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