Indian Creek Supply v. WCAB (Anderson)

In Indian Creek Supply v. Workers' Compensation Appeal Board (Anderson), 729 A.2d 157 (Pa. Cmwlth. 1999), the employer filed a termination petition seeking to end its liability for a lumbosacral strain sustained by the claimant. Evidence was submitted by both parties indicating that the claimant also had a central herniated disc at the L5-S1 level. Both the employer and the claimant's medical experts saw evidence of this herniation in a discogram and post-discogram CT scan and both experts attributed the condition to the claimant's work injury although the employer's expert did so reluctantly. Indeed, the employer's witness, on direct, opined that the claimant was fully recovered from his work-related lumbosacral strain and that the claimant did not sustain a herniation as a result of his work injury. It was only on cross-examination that he acknowledged that following his review of the discogram that he believed the claimant had a disc herniation and that it was related to his work activities. The WCJ granted the employer's termination petition. He indicated that there was no objective evidence to correlate a disc herniation to the claimant's work-related injury. The Board reversed. This Court pointed out that the employer's expert acknowledged on cross-examination that upon having reviewed the discogram, it appeared the claimant had a disc-herniation at the L5-S1 level that was attributable to his work injury. As this testimony contradicted the testimony he gave on direct, this Court found the employer's expert was equivocal in his opinion of full recovery and could not support employer's burden of proof. In dicta, we stated that "the WCJ's finding that the claimant's diagnostic records did not reveal any objective evidence to correlate a diagnosis of a disc herniation is not supported by substantial evidence because the discogram and post-discogram reports do, in fact, reveal a central herniated disc at the L5-S1 level." Id. at 160, fn. 2.