Lombardo v. Workers' Compensation Appeal Board

698 A.2d 1378, 1997 Pa. Commw. LEXIS 350
CourtCommonwealth Court of Pennsylvania
DecidedAugust 6, 1997
StatusPublished
Cited by67 cases

This text of 698 A.2d 1378 (Lombardo v. Workers' Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lombardo v. Workers' Compensation Appeal Board, 698 A.2d 1378, 1997 Pa. Commw. LEXIS 350 (Pa. Ct. App. 1997).

Opinion

SILVESTRI, Senior Judge.

Geraldine Lombardo (Claimant) petitions for review of an order of the Workers’ Compensation Appeal Board (Board) which affirmed the order of the Workers’ Compensation Judge (WCJ) dismissing her petition to set aside final receipt.

Claimant suffered a work related injury on April 17,1990. She began receiving benefits pursuant to a notice of compensation payable. On September 4, 1990, Claimant signed a final receipt and returned to a light duty position with no loss of earnings. On May 23, 1991, Claimant filed a petition to set aside final receipt alleging that she signed a final receipt on September 4, 1990 even though she still suffered residual disability from her work related injury because the company nurse advised her that she would not receive her final compensation cheek if she failed to do so. Employer filed an answer denying Claimant’s allegations and a hearing before the WCJ was held.

By order dated November 12, 1992, the WCJ dismissed Claimant’s petition to set aside final receipt. On appeal by Claimant, the Board, by order dated August 15, 1994, reversed the WCJ concluding that because Claimant returned to work in a light duty position after signing the final receipt, she necessarily continued to suffer residual disability from her work-related injury. Employer appealed to this Court, and we en[1380]*1380tered a memorandum opinion and order dated February 10, 1995 remanding the matter to the WCJ. We rejected the Board’s conclusion that Claimant necessarily suffered residual disability from her work injury based upon her return to a light duty work position. To the contrary, we noted that Claimant’s own testimony indicated that her return to light duty was because she was at the bottom of Employer’s seniority list and that the light duty position, which was on the second shift, was were she was placed. Accordingly, we remanded to the WCJ for a specific credibility determination regarding the medical evidence presented since each medical expert gave differing testimony as to whether Claimant continued to suffer residual disability when she signed the final receipt. Additionally, we remanded for a definitive finding of whether Claimant’s disability terminated at the time she signed the final receipt.

Following remand, the WCJ entered the following relevant findings:

5. Upon remand, after scrutiny of the expert medical opinions, we find that Dr. Feinstein’s opinion is the most credible because it is supported by clinical studies. Dr. Feinstein reviewed x-rays, an MRI and an EMG which specifically connected the Claimant’s feelings of discomfort to nerve problems associated with her diabetes. We also noted that Dr. Janerich, who testified on behalf of the Claimant, released her to return to employment on August 6, 1990.
6. Although we are very sympathetic to this Claimant, the preponderance of medical evidence shows that the problems she experienced following her return to work were related to her diabetes and not to her employment.

(WCJ’s August 1,1995 Decision, p. 2).

Based on the foregoing, the WCJ, by order dated August 1,1995, again dismissed Claimant’s petition to set aside final receipt. Claimant appealed to the Board, which, by order dated November 26, 1996 affirmed the WCJ’s decision.

On appeal here,1 Claimant argues that the Board erred in affirming the WCJ’s dismissal of her petition to set aside final receipt because Dr. Feinstein’s testimony was equivocal. Claimant also maintains that there was not substantial evidence to support the WCJ’s finding the Dr. Feinstein was credible based upon the diagnostic tests he used, and based upon the fact that he testified regarding an area of medicine in which he was not an expert. Finally, Claimant asserts that the WCJ erroneously applied the incorrect burden of proof. We disagree and affirm the Board’s decision.

Initially, we note that pursuant to Section 434 of the Workers’ Compensation Act,2 a final receipt is prima facia evidence of a termination of the employer’s liability to pay compensation. However, a referee may set aside a final receipt if a claimant can prove by sufficient, credible, competent evidence that all disabilities attributable to the work injury in fact had not terminated at the time that she signed the final receipt. Mellor v. Workmen’s Compensation Appeal Board (Wilson Tires, Inc.), 102 Pa.Cmwlth. 504, 518 A.2d 1308 (1986), petition for allowance of appeal denied, 519 Pa. 657, 546 A.2d 60 (1988). Where, as here, a claimant has resumed work with no loss of earning power and no obvious residual disability, the claimant must present unequivocal medical testimony to establish a continuing disability to set aside a final receipt. Id.

In support of her burden, Claimant presented the medical testimony of Dr. Albert Janerich and Dr. Lauren Argenio. Both of these experts opined that Claimant continued to suffer from some residual disability related to her work injury when she returned to work. Employer, in opposition to Claimant’s petition, presented the medical testimony of Dr. Peter Feinstein. Dr. Feinstein testified that in his opinion Claimant had recovered from any and all work related disability at the time she signed the final receipt. Dr. Feinstein further testified that [1381]*1381any residual discomfort Claimant had following her return to work was not due to her work injury, but was related to an underlying diabetic condition she had. Dr. Feinstein’s testimony in this regard was unequivocal. He testified as follows:

Q. Okay, excuse me. Doctor, going back to the last time you saw her prior to December 30th and that would have been August 6th, did you have an opinion with regard to whether she had recovered from her injuries of April 17th?
A. I indicated at that point that she could return to work in about two weeks and I felt that overall her examination did not correlate with her subjective complaints. So, I — although not stating it — I would have to say that she — although I didn’t state it in the letter, I felt that she had recovered from, her work related injuries.
Q. I see. Doctor, based upon your examinations of her, the diagnostic tests that you have reviewed and any medical reports or records that you had reviewed, did you within a reasonable degree of medical certainty reach a diagnosis with regard to her as of your examination of August 6, 1990?
A. Yes.
Q. And what was that diagnosis?
A. I felt once again at best she might have a sprain or strain or myofascial type of problem in her neck area. That was certainly giving her the benefit of the doubt — not by any objective testing.
Q. Had she recovered from that injury as of that examination?
A. I believe that she did.
Q. And doctor, you indicated before that she had a problem, a neuropathy resulting from her diabetes. Did you reach that diagnosis?
A. Yes.
Q. Was that related to her work?
A. No, it was not.

(Dr. Feinstein’s Deposition, pp. 16-17).

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Bluebook (online)
698 A.2d 1378, 1997 Pa. Commw. LEXIS 350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lombardo-v-workers-compensation-appeal-board-pacommwct-1997.