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Whitaker v. Workers' Compensation Appeal Board12/9/2005
al opinion; therefore, it did not fall within the Thomas exception.
During the deposition, Dr. Trabulsi testified extensively as to his review of Claimant's numerous medical records, including Dr. Rodgers' entire notes and reports. Dr. Trabulsi stated that Dr. Rodgers' records are of the type that he customarily relies on in forming his own opinion. While commenting on Dr. Rodgers' August 24, 2002 note, Dr. Trabulsi stated: "It was notable that her [Dr. Rodgers'] last record was August 24, 2002, which was the day after I saw Mr. Whitaker. In that note it's her assessment that the patient had returned to baseline with respect to his back symptoms, spine symptoms." Dr. Trabulsi's Deposition, pp. 37 - 38. Dr. Trabulsi testified that " n my opinion, taking all of those into consideration, including and especially my evaluation, I felt that he was recovered from the cervical and lumbar strain and sprain and transient aggravation and had returned to the baseline." Id. at p. 40. In responding to the question whether his opinion is consistent with Dr. Rodgers' August 24, 2002 note, Dr. Trabulsi simply stated: "Yes, the day after I saw him, in fact." Id.
This Court has consistently applied the Thomas exception to a medical expert's testimony in reference to another expert's notes and reports. See, e.g., Empire Steel Castings, Inc. v. Workers' Compensation Appeal Board (Cruceta), 749 A.2d 1021 (Pa. Cmwlth. 2000) (neurosurgeon rendered opinion based on treating physician's notes and reports); and Robinson v. Jackson, 602 A.2d 917 (Pa. Cmwlth. 1992) (general practitioner referenced treating neurologist's opinion in medical report). Unlike the physician in Cooper, Dr. Trabulsi merely referred to Dr. Rodgers' note in testifying as to his review of Claimant's entire medical records and never attempted to bolster or confirm his opinion with Dr. Rodgers' statement. Moreover, it was Claimant's counsel who moved to admit Dr. Rodgers' note into evidence during Dr. Trabulsi's deposition. The Court thus concludes that Dr. Trabulsi's reference to Dr. Rodgers' note falls within the Thomas exception to the hearsay rule. Because Dr. Trabulsi's testimony was accepted by the WCJ as credible, it therefore constitutes substantial competent evidence to support the WCJ's finding that Claimant had fully recovered from the March 2002 work injury as of August 23, 2002. Consequently, the Board's order affirming the termination of Claimant's benefits effective August 24, 2002 is affirmed.
Claimant argues as well that the WCJ's determination of the AWW is not supported by evidence in the record. Claimant testified that he was paid at an hourly rate of $17.71 with the base weekly wage of $708.40 for forty hours, and he also received overtime payments at the rate of time and a half of regular pay and gain share bonuses of $300 to $400 per month. Claimant could not estimate the frequency of the overtime, stating only that his weekly earnings were more than $800. The WCJ did not reject Claimant's testimony. When asked by the WCJ why Employer had not provided the wage stubs, Employer's counsel stated: "I wasn't aware that they weren't provided.. hey're computer printouts.. It has all the hours and hourly rate. It doesn't make it easy for us. It doesn't present them to us in an itemization form and we were accepting what was alleged in the Claim Petition." February 12, 2003 Hearing, pp. 43 - 44. Employer's counsel stated that he would try to "get something better" from Employer. Id. at p. 44.
Neither party provided the wage information to the WCJ despite the instruction to do so. As a result, the WCJ erred in treating the $708 weekly wage as the AWW. The Court therefore vacates the Board's order to the extent that
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