*1 appellant. for Wolfe, Harrisburg, M. Suellen Lebovitz, A. Brier, Batt, James Bonnie S. R. Robert ap- for Philadelphia, Ingersoll, Andrews Ballard, & Spahr, pellee.
ORDER PER CURIAM: affirmed.
Order in the consideration J., FLAHERTY, participate did not of this case. decision LEWIS, Appellant Roth
Ernest Pennsylvania, Workmen’s COMMONWEALTH Board, Pittsburgh Appeal Compensation Education, Appellees. Board Pennsylvania. Supreme Court 6, 1985. Argued March Sept. Decided *3 Pittsburgh, for Keisling, Keisling, F. Will & Rаymond appellant. Sol., Dille, Pitts- Sol., H. Asst. Stefanko, David
Robert J. for Education, Pittsburgh, appellees. Board burgh FLAHERTY, McDER LARSEN, NIX, C.J., and Before PAPADAKOS, JJ. HUTCHINSON, ZAPPALA and MOTT, OPINION McDermott, Justice. affirm- Court’s from Commonwealth appeal
This is an
rever-
Board’s
Compensation Appeal
of the Workmen’s
ance
to the
awarding compensation
decision
of a referee’s
sal
640,
The issue
Appellant’s workmen’s oc- incident from a work-related arising allegedly injuries curring employed Pittsburgh while Board of by Edu- cаtion as a education teacher. physical moving gym While during a scheduled in equipment day August in-service sharp pain felt a in of his appellant the back neck. He thereafter, hospitalized days was five later. Five he days hospital was transferred to another he placed where under the care of Dr. Narayan Nayak, neurosurgeon. Dr. as Nayak diagnosed аppellant suffering spon- from cervical root dylosis comprehension with a He syndrome. per- formed an anterior cervical and iliac discetomy graft fusion Appellant upon appellant. was absent from his from job September 1979 October hearing, At the referee’s appellant testified that he first experienced problems with his neck when he sustained a in injury college football at 1966. He suffered discomfort pain in his neck on an intermittent since that time. basis also testified Appellant that at the time of his alleged injury he was a coach parochial football at a local high school unassociated the Pittsburgh with School District.
In lieu of live medical testimony appellant had a Dr. deposition Nayak admitted into evidence.1 At the deposition recited, terms, claimant’s counsel in hypothetical medical appellant’s pertinent to his history disability, including incident at school. He then asked whether under those circumstances the neck condition was related to the incident occurring the course of claimant’s employ ment. Dr. answered: Nayak
Though we do not have a definite record of the I injury, *4 assume this particular episode which you mentioned could have directly been could indirectly have been the cause of problem. his At the time of there surgery, were extruded cartilages found which confirms this probably was an acute aggravating situation and responsible was for his compression root syndrome. efficacy deposition testimony, qua We do not intend to dilute the of deposition tеstimony. by deposition, Whether the evidence is "live” or unequivocal diagnosis prognosis. medical evidence must be in its infra, pp. See 364-368.
On Dr. cross-examination Nayak was asked to read the following from report a medical he issued to claimant’s attorney:
The history clinical suggestive long standing on- going process of spondylosis with root compression syn- know, drome. As far аs we history of evolution of this chronic, kind of is problem persistent, mild trauma which may aggravated by be mild trauma or the normal aging process of the spine may which be aggravated by the repeated trauma.
Since is this man involved in coaching, I football believe he exposed repeated would be to trauma to the neck and could for responsible aggravation be of this problem. Further cross-examination followed:
Q. Is Doctor, it also a possibility, that the aging normal
process spine of the which you have alluded into this particular paragraph, is it possible also that process normal aging gotten could progressive- have ly worse the point where he would need this particular operation you which performed upon him? A. Yes.
Q. Then additionally as you already have stated in the report], it is also possible that when he was
[medical coaching football, involved in that the traumas that are associated with that type activity, that could have this brought particular result, also; about that correct?
A. aggravated? Could have Q. The existing condition. Yes,
A. existing condition. On redirect agаin claimant’s counsel attempted to elicit an unequivocal statement the cause appellant’s disability from Dr. The Nayak. testimony was as follows:
Q. ... (the it is your testimony incident) work would have been a cause or an aggravating factor series of factors led to which is that surgery; correct?
365 disc, especially of find herniation the Usually A. we ... This is to like Mr. Ernest Lewis. due person in a younger if has mentioned trauma. I have to believe he an acute after the so, severely aggravated was his condition I to assume August on have injury which was disc has in mind that this herniated my doubt without incident, the time of but at particular from that come has re- beginning, having from he been the evaluation the X-rays the itself and myelogram trauma and peated spondylosis of shown evidence cervical themselves have aggravation The on-going, process. is an slow which on the injury at the time the could have been caused had herniation at August, and he could have 30th of that time. 30 an August the
Q.
episode
You are saying
of preexisting
a
condition?
aggravation
the
A.
this herniation of
disc.
responsible
And was
for
Board,
The
how-
granted appellant
refеree
benefits.
The
ever, reversed,
its
Dr.
conclusion that
Nayak’s
based
establish the
sufficiently unequivocal
not
testimony was
medical
appellant’s
causal connection between
necessary
The Common-
and the work-related incident.
condition
Court,
640,
1176,
80
472
reached
wealth
Pa.Cmwlth.
A.2d
and affirmed the decision of
Board.
this same conclusion
allocatur, and we
affirm.
grаnted
We
now
cases,
claimant has
compensation
In workmen’s
relationship
between a
proving
causal
burden
his alleged disability.
Monahan
work-related incident
Durham,
(1939);
Pa.
A.2d
v.
336
6
889
Miller
v. Seeds &
Department,
Pa.Su
Township Highway
Springfield
(1964).
no
there is
obvious
Where
per.
cause,
alleged
an
and the
injury
causal connection between
medical
by unequivocal
must be established
that connection
Compensation Appeal
Zander Workmen’s
testimony.
(1982).
Where
Board,
68 Pa.Cmwlth.
connec
to establish a causal
necessary
medical
not
tion,
testify,
injury
must
the medical witness
assigned
came from the
might
possibly
have or
condition
cause, but that
in his professional opinion the result
*6
question
assigned
did come from the
cause. Menarde v.
Co.,
Philadelphia Transportation
497,
376 Pa.
103 A.2d
(1954).
681
Medical evidence which is less than positive or
which is based upon possibilities
not
may
legally
constitute
competent evidence for the purpose
establishing
the
causal relationship. Bisesi v.
Compensation
Workmen’s
Appeal Board,
260,
61
(1981).
Pa.Cmwlth.
While that Dr. Nayak’s testimony was not as clear as one would hope, appellant contends that Dr. Nayak did, one point, unequivocally at state that injuries claimant’s were caused the by work related incident. He further argues court, the in relying lower on the later equivo- cations of Dr. Nayak, recognize failed to the doctrine that may accept referee reject testimony any witness in Harman Coal Co. v. Dun- part. whole or in myre, 474 Pa. (1977). Such an approach misconstrues the nature of the inquiry.
In a case such as it is purpose and function reviewing of the board appellate and/or courts to review referee, the conclusions of law of the while at the same time ascertaining that the facts found by sup referee are ported A by substantial evidence. determination that cer not, tain medical is equivocal appellant is as assumes, fact; finding rather, it is a conclusion of law and as such fully reviewable. See Corp. Bethlehem Steel Compensation Appeal Board, Workmen’s 66 Pa. 579, 581, (1982). Cmwlth. 445 A.2d 845 In conducting such review the medical witness’s entire testimony must be reviewed and taken as a whole and a final decision “should not upon rest a few words taken out of the context of the Wilkes-Barre, City v. Workmen’s Com entire testimony.” Board, pensation Appeal 230, 234, Pa.Cmwlth. 420 A.2d (1980). Thus, the rule of Dunmyre, supra, which is applicable to essentially determinations of credibility, not germane to this case the inquiry where is directed at the legal of the as a sufficiency evidence whole.
The question remains as to whether the lower tribunals correctly concluded that the evidence in this record was insufficient to sustain an award of compensation. Our review convinces us they were correct their conclu- sion that Dr. Nayak’s testimony regarding the cause of appellant’s maladies was too equivocal establish the necessary causal connection between those maladies and a work-related incident. first,
At Dr. Nayak testified that the incident at school “could have been directly or indirectly could have been the cause” of appellant’s condition. He then read from a report he prepared in which he stated that the clinical history suggested a longstanding ongoing process of spondylosis *7 with root compression syndrome which could have been aggravated simply through the normal aging process or through repeated trauma to the neck incurred in football coaching. Thereafter, he reaffirmed this reported opinion the condition could have been caused by these non- work-related factors.
Statements that an assigned cause “could have” been
the cause of the condition have
been
repeatedly
held to bе
legally insufficient. Simons v.
Compensation
Workmen’s
Board,
Appeal
52
575,
Pa.Cmwlth.
(1980);
(1965). Thus, Dr. Nayak’s on testimony direct examination was unequivocal not as to causation.
Dr. Nayak’s testimony on re-direct was also legally insufficient to establish the necessary causal connection. He stated that he had to “assume” that the herniated disc resulted from the work incident since appellant mentioned that his condition was severely aggravated after the inci dent. A physician’s assumption that an injury is caused by a recent event because of the temporal is proximity not a sufficiently competent opinion to establish a causal relation- Bisesi, In as ship. supra. the same breath this assump- tion, “repeated Dr. referred to trauma” Nayak again the “on-going, process” spondylosis, slow which he earli- er cited as causes. His vacillation continued possible as he again stated that the condition “could have” been caused by the work incident. equivocal
After these statemеnts claimant’s attorney attempted put to the witness an unequivocal statement. suggested: He “You are saying episode of August (work incident) an aggravation of a preexisting condi tion?” To which Dr. Nayak responded: respon “And was sible for this herniation the disc.” Although when exam ined alone this statement seems unequivocal, we cannot ignore Dr. Nayak’s repeated equivocal statements on the examined, same entire topic. When the is that, whole, reasonable conclusion is on the the physician’s statements regarding causal connection between the condition and the cause assigned equivocal, were and there fore were not sufficient to establish the causal necessary connection.
In summary, our review оf the subject testimony reveals it was inconsistent and internally equivocal. Under such circumstances the acceptance by referee of select- portions ed transcript borders whim.
Accordingly, the order of the Commonwealth Court *8 affirmed.
LARSEN, J., dissenting files a opinion.
LARSEN, Justice, dissenting. The majority prefaces its discussion of sufficiency of the evidence with the statements of following law: cases,
In workmen’s compensation claimant has the prоving burden of a relationship causal between a work- related incident and alleged his ... Where disability. injury there is no obvious causal connection an between alleged cause, and the that connection must be estab- lished by unequivocal medical testimony. ... Where
medical is necessary to establish a causal con- nection, the medical witness must not testify, that thе injury condition might have or possibly came from the assigned cause, in but that his professional opinion, the result in qustion did come from the assigned cause. ... Medical evidence which is less positive than or which is based upon possibilities not may constitute legally compe- tent evidence for the of purpose establishing the causal — relationship. (citations ... Majority op. at omitted; emphasis added).
The portion underscored of quotation contains a false which, assumption in my opinion, skews the majority’s review of the record for sufficiency the evidence. That assumption, which leads the majority search for suffi- ciency exclusively in the medical testimony, that there is no obvious causal connection appellant’s between and injury the alleged cause of the injury, namely the work-related incident wherein appellant experienced sudden, a sharp pain in the back of his neck moving while gym equipment weighing several hundred pounds August 30, 1979. That pain was severe enough that appellant went to see his family physician evening. September On five after days work, the incident at appellant was hospitalized for his neck injury. September 12, 1979, On Dr. Nayak operated on appellant to correct this condition. From these facts, evidence, as well as the medical the referee concluded that appellant “has met his burden proof to show that he suffered an injury1 the course of his employment which was related thereto.” I believe this conclusion proper in light of all the evidence.
In Morgan v. Markets, Inc., Giant 483 Pa. 397 A.2d (1979), this Court reversed the Commonwealth Court in case, similar wherein we stated:
The held, Commonwealth law, Court as a matter of the above facts do not establish the causation because no Act, by As defined Compensation 411(1), the Workmen’s 77 P.S. § "injury” injury means “an employe, regardless to an previous his condition, physical arising in employment the course of his related thereto ....’’ *9 linking medical the testimony work incident and the inju- had been ry produced. The court relied on Montgomery Mills Co. v. Workmen’s Compensation Board Ap- peals, 26 Pa.Cmwlth. (1976) which held: long-established “The rule is that unequivocal medical is required to establish a causal connection between an accident and a disability only whеre the obvious”, connection is not (citation omitted). Mills, In interpreting Montgomery supra, the court held in the instant case the causal connection between the work incident and the injury obvious, and, was not there- fore, medical testimony was needed.
We are
reversing
Commonwealth
in
Court
instant case. Where one is
an
doing
requires
act that
or strain
pain
experienced
at the point
force
strain,
injury
be
may
to have been
force
found
established. Pain is an
symptom
excellent
inju-
anof
ry.
course,
Of
the trier of fact will determine the credi-
of the
bility
witness’s testimony as to the total situation.
We, therefore,
find
competent
substantial
in
evidence
record to support
the conclusion of the Workmen’s Com-
pensation
Appeals,
Board of
the above facts estab-
lish a causal connection between the work incident and
appellant’s injury. Pages Department
Velardi,
Store v.
(1975).
Pa.
So too in the instant appellant’s own testimony regarding the incident at work on August 1979 and his immediately subsequent medical history is substantial com- petent evidence supports which the referee’s conclusion that hе had suffered a work-related even in injury the absence of medical testimony.
Moreover, to the I contrary majority believe the deposi- tion offered on behalf of appellant supports also the ref- In regard, eree’s conclusion. I find Judge Barbieri’s dissenting opinion persuasive. this case That opinion states:
371 I must dissent because it is clear to me that the case, of the testimony only medical witness in the read as whole, a contains opinion statements are sufficiently that positive to support referee’s that a finding medical or causal relationship exists between the aggravating injury conditions, that, and the disc therefore, the Work- men’s Compensation Appeal Board erred reversing the referee’s award. I wоuld Accordingly, reverse and rein- state the referee’s decision.
While it is true that some statements in the testimony of Dr. T. Narayan Nayak, alone, standing may be insuffi- cient to support finding of a causal I relationship, believe that the following testimony contains opinion assertions that are sufficiently positive to such a support finding:
[testimony omitted]. above, IAs read the giving to the words the interpreta- tion that will support best the referee’s findings, as I must, it amounts to this: that the claimant’s injury was “due trauma,” to an acute significant if not itself suffi- cient, Morgan Markets, Inc., Giant 483 Pa. (1979); that the relationship is so compellingly obvious that “I ...,” have to believe if the claimant’s accepted, was, which it “that his condition was severely aggravated” following work; the injury at that the doctоr is “without doubt” that the herniated disc came “from particular incident,” that although prefaced by “assume;” the word is, again, “this an aggrava- tion at the time of the injury;” and “that episode August 30 was an aggravation of a preexisting condi- tion,” which, although in the context of leading but unobjected to question, was answered in a clear affirma- tive, establishing that the episode on August “was responsible for this herniation of the disc.”
My research indicates Court, the Superior Court and Supreme Court required more, have never less, (numerous approved but have omit- citations often ted).
Based reverse the order of reinstate the Court and referee’s the Commonwealth award of benefits. *11 Pennsylvania, Appellant,
COMMONWEALTH Sell, CAPITOLO, Jay Stephen Ann E. Ander- Patricia Curtis Heilman, son, Wagner, Appellees. Edward S. and Sue Pennsylvania. Supreme Court of Argued Oct. 1984. Sept.
Decided