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Whitaker v. Workers' Compensation Appeal Board12/9/2005
ar duties, but in the physical capacities form restricted Claimant to full-time light-duty work due to the pre-existing conditions.
The WCJ accepted as credible Claimant's testimony to the extent that he sustained the work injury on March 10, 2002 and rejected his testimony regarding his continuing disability from the work injury. Accepting Dr. Trabulsi's testimony as more credible than Dr. Roby's conflicting testimony, the WCJ awarded Claimant weekly benefits of $471.51 based on his AWW of $708 from March 11, 2002 through August 23, 2002 and then terminated his benefits as of August 24, 2002. Claimant appealed to the Board challenging the WCJ's description of the injury, determination of the AWW and termination of benefits.
The Board concluded that Dr. Trabulsi's accepted testimony constituted substantial, competent evidence to support the WCJ's findings. The Board rejected Claimant's argument that in rendering his opinion of full recovery from the work injury, Dr. Trabulsi relied on Dr. Rodgers' inadmissible hearsay statement in an August 24, 2002 note that Claimant had returned to baseline. The Board stated that Dr. Rodgers' records are of the type that Dr. Trabulsi customarily relies upon in forming his opinion and that he based his opinion on his examination and review of Claimant's history and entire medical records. Further, the WCJ did not err in using Claimant's weekly wage of $708 stated in the claim petition as his AWW because he did not submit pay stubs or a W-2 form and because Employer stipulated that $708 was the AWW. The Board affirmed the award for the closed period and terminated benefits but remanded the matter to the WCJ to reopen the record to allow Claimant to submit litigation costs. After Employer agreed to reimburse Claimant's counsel $2,600.81, the Board made its previous order final.
It is well established that a claimant has the burden of proving all of the elements required for an award throughout the pendency of the claim petition, including the duration of work-related disability. Edwards v. Workers' Compensation Appeal Board (Sear's Logistic Services), 770 A.2d 805 (Pa. Cmwlth. 2001). Where the causal relationship between the claimant's employment and the alleged disability is not obvious, the claimant must establish the causal relationship by unequivocal medical evidence. AT&T v. Workers' Compensation Appeal Board (Hernandez), 707 A.2d 649 (Pa. Cmwlth. 1998). Claimant argues that the WCJ erred in relying on Dr. Trabulsi's opinion to find his full recovery from the work injury because the doctor based his opinion on Dr. Rodgers' inadmissible hearsay statement in the August 24, 2002 note that Claimant had returned to baseline with regard to his back and spine symptoms.
Under the exception to the hearsay rule adopted in Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971), medical witnesses are permitted to express opinion testimony on medical matters based, in part, upon reports of others that are not in evidence but which experts customarily rely upon in the practice of their profession. Relying on Cooper v. Burns, 545 A.2d 935 (Pa. Super. 1988), Claimant asserts that Dr. Trabulsi's reference to Dr. Rodgers' August 24, 2002 note does not fall within the Thomas exception to the hearsay rule. In Cooper the Court held that the physician's testimony that he relied on the psychiatrist's diagnosis of major depression to postpone the plaintiff's surgery fell within the Thomas exception. The Court also held that the physician's testimony, that another doctor's diagnosis of disc herniation in the medical report was the same as the witness' diagnosis, was offered as an extra-judicial opinion of another doctor to corroborate the witness' medic
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