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Saville v. Workers' Compensation Appeal Board8/7/2000
back sprain/strain. The employer petitioned for termination and presented the testimony of Dr. Kallish who testified essentially that claimant had fully recovered from her work injury. The claimant in Davis, like Claimant herein, complained of subjective pain. Dr. Kallish in Davis, like Dr. Resnick herein, testified that there was no objective evidence to support those subjective complaints of pain. The WCJ granted the termination petition and the Board affirmed. The claimant in Davis petitioned for review in this court. She argued to this court that "employer failed to present sufficient, competent evidence to support the termination of her benefits because employer's medical witness failed to testify that claimant could return to work without restrictions." Davis, 749 A.2d at 1034. This argument is remarkably similar to the argument which Claimant makes herein. We rejected the argument in Davis that merely because the employer's expert testified that claimant could not return to work without restrictions that employer failed to carry its burden of proof to entitle it to a termination. In holding that Dr. Kallish's testimony in Davis was sufficient to meet employer's burden we stated that "Dr. Kallish's opinion that minimal restrictions should apply on her immediate return to employment did not render his opinion equivocal or insufficient because such restrictions were not related to her work injury." Davis, 749 A.2d at 1035. Thus, although Udvari speaks in terms of requiring medical testimony that a claimant can return to work without restrictions, we understand Udvari to require only medical testimony that a claimant can return to work without restrictions which are causally related to the work injury. Hence we reject Claimant's argument that simply because Dr. Resnick, Employer's expert, failed to testify that Claimant could return to work without restrictions, Employer failed to carry its burden of proving entitlement to a termination. As in Davis, because the restrictions placed upon Claimant herein were not related to her work injury, those restrictions do not render Dr. Resnick's testimony insufficient to sustain Employer's burden.
Nevertheless, Claimant attempts to rely upon Thompson v. Workers' Compensation Appeal Board (Sacred Heart Medical Center), 720 A.2d 1074 (Pa. Cmwlth. 1998), allocatur denied, 559 Pa. 699, 739 A.2d 1062 (1999) to support her contention that Dr. Resnick's testimony was insufficient. We find her reliance unpersuasive. First and foremost, we note that Thompson was a panel decision decided in 1998 without the benefit of the analysis which the court en banc provided in Davis. Second, it does not appear that the issue which is dispositive herein was raised by the parties in Thompson and therefore not directly addressed in Thompson. Namely, the dispositive issue herein is what is the meaning of the phrase from Udvari, requiring an employer's expert to testify that the claimant "can return to work without restrictions." Whereas the issue was not apparently raised and therefore not addressed in Thompson, the issue was impliedly addressed in Davis.
In Davis, the claimant contended that "since employer's medical witness testified that it was necessary for her to return to work with restrictions, such testimony is insufficient to support the termination of benefits." Davis, 749 A.2d at 1035. We disagreed and explained that an employer's burden for termination is met when either it proves all physical disability has ceased or that whatever physical disability claimant is currently experiencing is the result of an independent cause totally separate and distinct from the work-related injury which is another way of saying that the employer must show a lack of causal connection be
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