Opinion
Argued June 7, 1979
July 6, 1979.
Workmen's compensation — Causation — Unequivocal medical testimony — Additional tests — Conflicting evidence.
1. In a workmen's compensation case medical opinion testimony on the issue of causation must be unequivocal, and testimony by a medical witness based on a reasonable degree of medical certainty that claimant's present symptoms were unrelated to his compensable injury is sufficiently unequivocal and is not made otherwise by the qualifying phrase of the witness that more sophisticated tests could be utilized but would not in his opinion establish a causal connection. [94-5]
2. In a workmen's compensation case the resolution of conflicting testimony is for the referee, not the reviewing court. [95]
Argued June 7, 1979, before Judges WILKINSON, JR., MENCER and MacPHAIL, sitting as a panel of three.
Appeal, No. 1655 C.D. 1978, from the Order of the Workmen's Compensation Appeal Board in case of Angelo Sellecchia v. Har Nebo Cemetery, No. A-73534.
Petition with the Department of Labor and Industry to terminate workmen's compensation benefits. Petition granted. Claimant appealed to the Workmen's Compensation Appeal Board. Decision affirmed. Claimant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Henry J. Horstmann, with him Frank Carano, for petitioner.
Martin J. Fallon, Jr., with him Swartz, Campbell Detweiler, for respondents.
This is an appeal by petitioner (claimant) from an adverse determination by the Workmen's Compensation Appeal Board (Board) sustaining a referee's termination of disability benefits. We affirm.
Claimant suffered an injury during the course of his employment with respondent on July 24, 1974. He was paid disability benefits to February 7, 1975 pursuant to a Notice of Compensation Payable which denominated his injury as an inguinal hernia. During this period, claimant was treated by N. Henry Moss, M.D., a Board-certified specialist in general surgery who performed a surgical repair of the hernia and provided post-operative care. On February 7, 1975, Dr. Moss signed an Affidavit of Recovery.
At the hearing following the filing of the termination petition, Dr. Moss testified that in his opinion the claimant had fully recovered from the hernia injury, although claimant continued to complain of pain in his chest and arms. Dr. Moss further testified that in his opinion the hernia and the hernia repair are unrelated to his present symptoms, but he stated that he could not be "100 per cent precise . . . without going through a more sophisticated study." Claimant's medical witness, Dr. DiDio, who examined him on December 4, 1975 agreed that the hernia was well-healed and well-repaired, but stated that in his opinion physical inactivity resulting from the injury and post-operative recovery caused an existing arteriosclerosis and arthritis to advance to a stage where he was unable to resume work. Claimant was 63 years of age at the time of the injury.
Claimant contends that the evidence presented by the respondent to sustain his burden of proof was insufficient in that the testimony of Dr. Moss was not certain and unequivocal as it related to the cause of claimant's symptoms of pain and numbness in his chest and arms.
In a workmen's compensation case, medical opinion testimony regarding causation must be unequivocal and not based on mere possibilities in order to constitute sufficient competent evidence to support a referee's finding. Romanski v. Workmen's Compensation Appeal Board, 33 Pa. Commw. 273, 381 A.2d 508 (1978). On review by this Court, the test in this regard is whether the qualitative phrase does or does not qualify or modify the answer so as to make it equivocal. Harrisburg Housing Authority v. Workmen's Compensation Appeal Board, 14 Pa. Commw. 413, 322 A.2d 753 (1974). Here, Dr. Moss testified that although he would need to conduct additional tests to eliminate any possibility that the present symptoms were connected with the injury, in his opinion these tests would not establish that there was a causal connection. A thorough review of Dr. Moss' testimony further establishes the doctor did testify that based on a reasonable degree of medical certainty it was his opinion that the injury and subsequent symptoms related to him by claimant were unrelated. Moreover, the testimony of claimant's witness, Dr. DiDio establishes that his examination of claimant was not more detailed or sophisticated than that of Dr. Moss. Clearly, then, the issue is reduced to a factual conflict of medical opinion and within the purview of the referee and not this Court.
At oral argument, claimant relied on the Supreme Court's recent decision in McGee v. L. F. Grammes Sons, Inc., 477 Pa. 143, 383 A.2d 864 (1978). Claimant's reliance is misplaced. In McGee, the Supreme Court found that the employer had not met its burden of proof that the current disability was unrelated to the injury for which compensation had been awarded and was being paid. In the instant case, the employer has offered unequivocal medical evidence that any current disability is unrelated to the injury for which compensation was being paid. The referee found that this met the employer's burden of proof. The Board affirmed. We agree.
Accordingly, we will enter the following
ORDER
AND NOW, July 6, 1979, the order of the Workmen's Compensation Board of Review, at No. A-73534, dated June 15, 1978, is hereby affirmed.