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Bob Evans Restaurant v. Workers' Compensation Appeal Board11/1/2005
ed Claimant. As discussed above, matters of evidentiary weight are clearly within the sole province of the WCJ as fact finder. Rissi.
Moreover, as the Supreme Court noted in Daniels, there are "countless objective factors" that would support accepting certain evidence and rejecting other competent but conflicting evidence. 547 Pa. at 78, 828 A.2d at 1053. Here, we believe that the WCJ has articulated an objective basis for rejecting Dr. Beutler's medical opinion. In addition, "greater credence may be given to the testimony of a treating physician than to a physician who examines simply to testify for litigation purposes." D.P. "Herk" Zimmerman, Jr., Inc. v. Workmen's Compensation Appeal Bd. (Himes), 519 A.2d 1077, 1080 (Pa. Cmwlth. 1987).
Employer also contends that the WCJ's disregard of Dr. Silvaggio's comprehensive assessment of fibromyalgia is also devoid of any rational explanation. Employer asserts that Dr. Silvaggio, a board-certified occupational medicine expert, is certainly qualified to assess the relationship between a work injury and fibromyalgia. Employer also asserts that the WCJ ignored the purpose of Dr. Silvaggio's assessment, i.e., to review Claimant's complete medical records in light of the available medical literature on fibromyalgia in order to provide an overall evaluation of Claimant's claims.
As we noted above, the WCJ is permitted to give greater credence to the opinions of Claimant's treating physicians, who have examined her on numerous occasions, than to the opinion of Dr. Silvaggio, who never examined her. D.P. "Herk" Zimmerman, Jr., Inc. Here, Dr. Silvaggio stated that the preponderance of medical literature does not support the theory that trauma can cause fibromyalgia and that there is no evidence of record that Claimant has an ongoing cognitive disorder due to her work injury. Dr. Silvaggio also opined that Claimant is fully recovered from any cervical or lumbar strain.
As discussed above, however, Claimant did present unequivocal medical evidence indicating that she suffered from post-traumatic fibromyalgia and cognitive disorders related to her work injury. It is within the province of the WCJ as fact finder to accept the opinions of Claimant's medical experts and reject the opinions of Employer's medical experts. Rissi; Martin. In view of the above, we conclude that the WCJ's credibility determinations as to Dr. Beutler and Dr. Silvaggio are neither arbitrary nor capricious.
IV.
Employer's fourth argument is that the WCJ erred in denying its termination petition in light of Dr. Beutler's unequivocal testimony that Claimant had fully recovered from her original work injury, which involved a cervical and lumbar strain or sprain. Employer contends that Claimant's medical evidence did not directly address the issue of full recovery as to these issues as of the date of Dr. Beutler's examination. Therefore, Employer contends that Dr. Beutler's opinion as to Claimant's recovery from her spinal strains was unrebutted.
"An employer seeking to terminate workers' compensation benefits bears the burden of proving either that the employee's disability has ceased, or that any current disability arises from a cause unrelated to the employee's work injury." Campbell v. Workers' Compensation Appeal Board (Antietam Valley Animal Hosp.), 705 A.2d 503, 506-507 (Pa. Cmwlth. 1998).
In Finding of Fact 43, the WCJ stated:
I reject as not credible the opinions of Dr. Beutler and Dr. Silvaggio, which appear to be the only opinions that could support Employer's contention that Claimant had recovered from her work-related cervical and lumbar injuries, not only for the reasons already descr
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