Mino v. Workers' Compensation Appeal Board

990 A.2d 832, 2010 Pa. Commw. LEXIS 86, 2010 WL 668956
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 26, 2010
Docket41 C.D. 2009
StatusPublished
Cited by14 cases

This text of 990 A.2d 832 (Mino 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
Mino v. Workers' Compensation Appeal Board, 990 A.2d 832, 2010 Pa. Commw. LEXIS 86, 2010 WL 668956 (Pa. Ct. App. 2010).

Opinions

OPINION BY

Judge COHN JUBELIRER.

Julio Paz y Mino1 (Claimant) petitions for review of the December 30, 2008 order of the Workers’ Compensation Appeal Board (Board). In its order, the Board affirmed Workers’ Compensation Judge (WCJ) Kathleen DiLorenzo’s (Second WCJ) decision and order, which: granted Crime Prevention Association’s (Employer) second Petition to Terminate Benefits (Second Termination Petition); granted Employer’s Petition to Review Compensation Benefit Offset (Offset Petition); and denied Claimant’s Petition to Review Compensation Benefits (Review Petition).2 Before this Court, Claimant challenges the grant of Employer’s Second Termination Petition and Employer’s Offset Petition. For the reasons that follow, we vacate and remand in part and affirm in part.

I. Facts and Procedural Posture

Claimant worked as the Director of Child Care Information for Employer, which is a non-profit agency that provides childcare subsidies to children of families in Philadelphia. On June 20, 2000, Claimant sustained work-related injuries when he tripped over boxes, fell backwards, and landed on a concrete floor. Claimant did not initially miss any time from work due to his work-related injuries, and Employer did not initially issue a Notice of Compensation Payable (NCP). Employer did, however, pay for Claimant’s medical bills. Employer eventually ceased paying Claimant’s physical therapy bills based on the results of a Utilization Review (UR) Determination. Thereafter, Claimant reduced the number of hours that he worked to four hours per day due to increased pain resulting from his inability to obtain physical therapy.

[835]*835In mid to late 2003 and early 2004, the parties filed numerous petitions, including, among others, a Petition to Modify Compensation Benefits (Modification Petition) and a Petition to Terminate Benefits (First Termination Petition). Claimant, through the Modification Petition, sought to obtain partial disability benefits as of September 8, 2003, alleging that his work-related injuries had worsened, and that he had reduced the hours he worked to four hours per day. Employer, through the First Termination Petition, sought to terminate Claimant’s benefits on the basis that Claimant was fully recovered and able to return to unrestricted work as of December 31, 2003. The Modification Petition and First Termination Petition were consolidated, and the matter was assigned to WCJ Sarah Makin (First WCJ) for disposition. During the pendency of these petitions, on April 27, 2004, Employer issued an NCP acknowledging a lumbar sprain and strain and establishing an average weekly wage (AWW) of $1,298.08.

On October 28, 2004, the First WCJ issued a decision and order, which, among other things, granted Claimant’s Modification Petition and denied Employer’s First Termination Petition.3 With regard to Claimant’s Modification Petition, the First WCJ concluded that Claimant had satisfied his burden of proving that, as of September 8, 2003, he began missing time from work due to his work-related injuries. (First WCJ Decision, Conclusions of Law (COL) ¶ 2, October 28, 2004, R.R. at 865a.) Accordingly, the First WCJ awarded Claimant partial disability benefits, at the rate of $432.88 per week, as of September 8, 2003. (COL ¶ 2, R.R. at 865a.) With regard to Employer’s First Termination Petition, the First WCJ concluded that Employer failed to prove that Claimant fully recovered from his work-related injuries. (COL ¶ 1, R.R. at 864a.) In reaching this conclusion, the First WCJ did not specifically state that she was amending the injury description contained in the NCP; however, she credited the testimony of Claimant’s expert, Roy Lerman, M.D., over the testimony of Employer’s expert, David Bosacco, M.D., and she summarized Dr. Lerman’s testimony, in relevant part, as follows:

a. ... Based upon his examination and his review of medical records, [Dr. Lerman] diagnosed Claimant as having severe stenosis at L4-5 with L4-5 radiculopathy post-fall and mild L3-4 stenosis.
b. Dr. Lerman also had the opportunity to review two MRI reports, one from November 10, 1992, and one from August 5, 2000. He reviewed other records as well as x-rays.
c. Dr. Lerman testified that the MRIs were significant because they showed stenosis, which is narrowing of the spine between the vertebrae. They showed that his condition had become degenerative and they were hypertrophy [sic] or enlarged and encroaching upon the spinal canal. He also noted that there was spurring of the discs as a result of this narrowing and compression of the nerve at L4-5. He explained that although these changes may occur gradually over time, a traumatic event such as Claimant’s fall causes them to become symptomatic, causing both pain in the back and leg.
[836]*836He noted- that the EMG of November 16, 2000 did demonstrate an acute and chronic radiculopathy in the L5 distribution, which meant that there was evidence of a recent trauma for that nerve distinguishing it from a chronic problem that Claimant had had since 1992.
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g. Dr. Lerman noted that prior to 2000, Claimant did have a disc herniation in his back, which had become calcified causing ridging and, thus, stenosis. However, he occasionally had a mild backache and nothing more. It was not until his fall that he became truly symptomatic with nerve involvement.

(First WCJ Decision, Findings of Fact (FOF) ¶ 10(a)-(c),(g), October 28, 2004, R.R. at 860a-61a (emphasis added).) Neither Employer nor Claimant appealed the First WCJ’s decision and order to the Board, and Employer’s insurance carrier, AIG Domestic Claims, Inc. (AIG), began paying Claimant partial disability benefits in accordance with that decision and order.

On July 7, 2006, Employer filed its Second Termination Petition, alleging that Claimant had fully recovered from his work-related injuries and was able to return to unrestricted work as of April 25, 2006. On August 16, 2006, Employer filed its Offset Petition, alleging that it had overpaid Claimant $22,015.04 for the period from February 26, 2004 through February 15, 20054 because Claimant received his full salary in addition to partial disability benefits for this period. Claimant denied the allegations made in Employer’s Second Termination Petition and Offset Petition. The petitions were consolidated, and the matter was assigned to the Second WCJ for disposition. The Second WCJ held several hearings at which the parties presented testimony and evidence.

With regard to the Second Termination Petition, Employer presented the deposition testimony of Jeffrey Malumed, M.D. Dr. Malumed testified as to Claimant’s recovery from his work-related injuries and his ability to return to unrestricted work. Claimant testified on his own behalf and presented the deposition testimony of Dr. Lerman and Robert Winer, M.D. Dr. Lerman and Dr. Winer both testified as to the continuing nature of Claimant’s work-related injuries and Claimant’s inability to return to unrestricted work.

With regard to the Offset Petition, Employer presented the deposition testimony of Daniel Harris, Employer’s Director of Human Resources. Mr. Harris testified that following Claimant’s injury, Employer continued paying Claimant his full salary, even when Claimant only worked partial days. (Harris Dep.

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Mino v. Workers' Compensation Appeal Board
990 A.2d 832 (Commonwealth Court of Pennsylvania, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
990 A.2d 832, 2010 Pa. Commw. LEXIS 86, 2010 WL 668956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mino-v-workers-compensation-appeal-board-pacommwct-2010.