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Saville v. Workers' Compensation Appeal Board8/7/2000
s was my examination which was unremarkable, the subjective complaints which the man made, and his history of having made complaints about his back. In that regard I felt that although he could work full time, that he could have some restricted on his physical capabilities. Reproduced Record (R.R.) at pp. 19r-20r (emphasis added).
Essentially, Claimant argues that the emphasized portions of testimony above render Dr. Resnick's testimony insufficient under the Udvari test. We disagree.
In Udvari, the employer, USAir, Inc. filed a termination petition. In support of that petition, USAir presented the testimony of a physician who testified that the claimant had fully recovered. The WCJ granted a termination and the Board affirmed. This court reversed the termination and opined that because, inter alia, USAir's medical expert testified regarding claimant's continuing subjective complaints of pain, a termination was improper, finding a suspension was more appropriate. USAir appealed arguing that there was substantial evidence to support a termination. The Supreme Court agreed, reversed this court and held that:
e must keep in mind that the employer bears the burden of proof in a termination proceeding to establish that the work injury has ceased. In a case where the claimant complains of continued pain, this burden is met when an employer's medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to work without any restrictions and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury. Udvari, 550 Pa. at 327, 705 A.2d at 1293.
Here in this case, we find that Dr. Resnick's testimony, taken as a whole, met the Udvari test. The mere fact that Dr. Resnick placed restrictions upon Claimant due in part to Claimant's subjective complaints of pain does not render Dr. Resnick's testimony inadequate under Udvari. While it is true that Dr. Resnick considered Claimant's subjective complaints of pain in placing Claimant on restrictions, it is equally clear that Dr. Resnick did not consider those subjective complaints of pain to be related to the work injury. For example, in the above quoted exchange, Dr. Resnick clearly stated that he "would not have placed any restrictions with regard to the accident [i.e., work-related injury] itself." The record is clear on this point. In response to a question regarding the limitations Dr. Resnick placed upon Claimant, Dr. Resnick testified as follows:
s I said earlier, I believe that there are no restrictions to be placed upon his physical capacities with regard to the work injury he sustained in 1993 from which in my opinion he recovered.
However, I have placed the limitations in my physical capabilities form upon his work abilities in regard to what I consider to be a chronic degenerative condition in his low back, not arising from the injury but an independent condition. R.R. at 27r-28r.
Thus, it is clear that although there were restrictions placed upon Claimant, those restrictions were not work-related. This is significant because as we recently held that in a termination proceeding where restrictions are placed upon a claimant, but it is established that those restrictions are not causally related to the work injury, the employer is entitled to a termination so long as the medical expert has testified that the claimant is fully recovered from the work-related injury. See Davis v. Workers' Compensation Appeal Board (Mercy Douglas), 749 A.2d 1033 (Pa. Cmwlth. 2000)(en banc).
In Davis, the claimant suffered a low
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