Moore v. Workers' Compensation Appeal Board8/9/2000
clear that after the successful fusion was accomplished in February, 1993 the Claimant had increased symptoms related to her pre-existing condition. The Claimant's 1993 surgery was successful in resolving the pseudoarthritis condition related to the work injury. Dr. Supinski originally opined that the Claimant's complaints after this surgery are related to her pre-existing condition. The finding of crepitus in the back that Dr. Supinski later observed was, according to the Claimant's testimony, always there. (WCJ's Findings of Fact, No. 32.)
Thus, the WCJ concluded that Employer met its burden to establish that Claimant was fully recovered from her work injury at the time of Dr. Supinski's August 31, 1994 examination. Accordingly, the WCJ granted Employer's Termination Petition, effective as of that date. Claimant appealed the WCJ's decision to the WCAB, which vacated in part and affirmed, as modified, in part.
Before this court, Claimant argues that Employer failed to prove by substantial medical evidence that all of Claimant's work-related disability had ceased. Specifically, Claimant argues that Employer's medical expert's testimony was equivocal and ignores the facts of the case. We note, however, that the WCJ did not credit Dr. Johe's testimony regarding Claimant's diagnosis or when she was recovered from the work-related injury. Therefore, we need only consider whether Dr. Supinski's testimony is adequate to support Employer's Termination Petition. After a review of that testimony, we must conclude that it is not.
In a termination petition proceeding, the employer bears the burden of proving, through substantial, competent credible medical testimony, that a claimant's disability has ceased or that any remaining disability is no longer related to the work injury. See McFaddin v. Workmen's Compensation Appeal Board (Monongahela Valley Hospital), 620 A.2d 709 (Pa. Cmwlth. 1993). In order for medical testimony to constitute competent medical evidence, such testimony must be unequivocal. Whether medical testimony is equivocal is a question of law, fully reviewable by this court, and is to be determined by reviewing the entire testimony of the medical witness. Galbreath v. Workmen's Compensation Appeal Board (Gordon), 627 A.2d 287 (Pa. Cmwlth. 1993), appeal denied, 537 Pa. 643, 644 A.2d 165 (1994). Here, the WCJ credited Dr. Supinski's 1994 testimony, but rejected his 1997 testimony, and relied on the 1994 testimony as the basis to grant Employer's Termination Petition. However, in his 1997 testimony, Dr. Supinski recanted his 1994 testimony that Claimant had fully recovered from the work- related injury as of August 31, 1994, explaining that his opinion had changed based on new information he had. This recantation renders Dr. Supinski's 1994 testimony equivocal. See Philadelphia College of Osteopathic Medicine v. Workmen's Compensation Appeal Board (Lucas), 465 A.2d 132 (Pa. Cmwlth. 1983) (stating that if the witness recants the opinion first expressed, such opinion is equivocal). Because such equivocal medical testimony cannot support a finding that Claimant's work-related disability had ceased, Employer has not sustained its burden of proof.
Accordingly, we reverse that portion of the order of the WCAB, which affirmed the WCJ's decision to terminate Claimant's workers' compensation benefits as of August 31, 1994.
ROCHELLE S. FRIEDMAN, Judge
ORDER
AND NOW, this 9th day of August, 2000, that portion of the order of the Workers' Compensation Appeal Board, dated February 9, 2000, at A98-2996, which affirmed the termination of Robin Moore's benefits is hereby reversed.
ROCHELLE S. FRIEDMAN, Judge
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