Jenkins v. Workmen's Compensation Appeal Board

FLAHERTY, Judge,

dissenting.

I respectfully dissent. Initially, it is acknowledged that the existence of subjective pain does not, in and of itself, preclude a physician from determining that a claimant has fully recovered from his or her work injury. See Laird v. Workmen’s Compensation Appeal Board (Michael Curran & Associates), 137 Pa.Cmwlth. 206, 585 A.2d 602 (1991). Therefore, I do not dissent to the grant of a termination on those grounds. However, the temperature difference between Claimant’s right and left hand is an objective finding. Employer failed to establish that this temperature difference is not the result of Claimant’s work-related injury.

The WCJ found credible the testimony of Employer’s physician. Although Dr. Mitchell could not, or would not, find any objective basis for the coolness in Claimant’s left hand, he could not rule out the possibility that this temperature difference is a residual of a reflex sympathetic dystrophy. Although stating he was not certain, Dr.. Mitchell testified that the “cool sensation ... may be a residual from [a reflex sympathetic dystrophy]-” (Dr. Mitchell’s 6/18/93 deposition, p. 44). Dr. Mitchell also testified that he felt the coolness in Claimant’s left hand “might be a residual,” but he did not believe this was enough evidence on which to base a firm diagnosis. (Dr. Mitchell’s 6/18/93 deposition, p. 45).

Indeed, if this were a claim petition, Claimant would be hard-pressed to rely on this testimony as unequivocal evidence to establish a work-related disability. However, as this is a termination petition, it is Employer that bears the burden of proving, through unequivocal evidence,' that all disability associated with Claimant’s work injury has ceased and terminated. Victor’s Jewelers v. Workmen’s Compensation Appeal Board (Bergelson), 145 Pa.Cmwlth. 630, 604 A.2d 1127 (1992). Based on the testimony of its own physician, I do not believe Employer met this burden.