Palaschak v. Workers' Compensation Appeal Board

35 A.3d 1242, 2012 Pa. Commw. LEXIS 34, 2012 WL 171062
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 23, 2012
Docket1699 C.D. 2010
StatusPublished
Cited by6 cases

This text of 35 A.3d 1242 (Palaschak 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
Palaschak v. Workers' Compensation Appeal Board, 35 A.3d 1242, 2012 Pa. Commw. LEXIS 34, 2012 WL 171062 (Pa. Ct. App. 2012).

Opinions

OPINION BY

Judge LEAVITT.

Richard Palaschak (Claimant) petitions for review of an adjudication of the Workers’ Compensation Appeal Board (Board) refusing to reinstate his total disability benefits because his petition was untimely filed. The Board held that Claimant’s request for reinstatement was untimely because it was filed more than 500 weeks after the date on which his disability benefits were suspended. Discerning no error in the Board’s adjudication, we affirm.

Background

Claimant sustained a neck injury on January 28, 1992, while performing his job as a mechanic with U.S. Airways (Employer). Claimant collected total disability benefits until February 5, 1996,3 when he returned to his pre-injury job, with restrictions, after surgery to treat his neck injury. Claimant’s full-time, modified-duty job paid wages equal to or greater than his pre-injury wages. Accordingly, Claimant’s disability benefits were suspended on February 5,1996.4

[1245]*1245Claimant continued to work for Employer until March 2006, when Claimant told Employer that his doctor had placed an additional restriction on Claimant, directing him to do only “bench work.” Reproduced Record at 102a (R.R._). Employer replied that it could not accommodate this restriction and, as a result, it had no more work for Claimant.

On April 21, 2006, Claimant filed a reinstatement petition, alleging that his 1992 work injury had caused a loss of earning power as of March 2006. Claimant also filed a modification petition alleging that his work injury had caused him to miss work at various times between February 1996 and March 2006 but he had not been paid disability during those absences. Employer filed answers denying the factual allegations and asserting that Claimant’s petitions were time-barred. Claimant then filed a claim petition alleging that he sustained a new work-related neck injury on March 15, 2006; Employer denied this allegation. Claimant’s petitions were consolidated and assigned to a WCJ, who conducted several hearings.

Claimant testified that before sustaining his 1992 neck injury, he had worked on aircraft in the main hangar bay doing heavy work with sheet metal. Claimant explained that after his surgery for his work injury, his physician released him to do light-duty work, with no lifting over 35 pounds and no overhead work. When Claimant returned to work on February 5, 1996, it was to a light-duty job working on small aircraft parts in the shop at a bench. Whenever there was no bench work to be done, Claimant was assigned to tidy up the shop.

In March 2005, Employer assigned Claimant to the overhaul bay working in cargo bins and lavatories of airplanes. This job involved crawling, twisting and reaching, which Claimant stated caused pain in his neck as well as numbness and tingling in his arms. Claimant complained to Employer, and it returned him to the shop area in May 2005. However, from time to time, Employer continued to assign Claimant to work in the overhaul bay.

On March 17, 2006, Claimant informed Employer that his physician directed him to do only “bench work.” After reviewing the physician’s report, Employer informed Claimant that it was placing him on unpaid leave because it could not accommodate his physician’s restriction.5 Claimant has not worked since then, and he continues to suffer pain in his neck and arms.

Claimant presented the deposition testimony of Gin-Ming Hsu, M.D., who is board certified in physical medicine and rehabilitation with a subspecialty in pain management. Dr. Hsu explained that he became Claimant’s treating physician in March 1999, after Claimant’s prior physician retired. Dr. Hsu described Claimant’s 1992 work injury as a herniated cervical disc that was treated with decompression surgery. Dr. Hsu diagnosed [1246]*1246Claimant with chronic neck pain; cervical radiculopathy causing pain in his left arm; and myofascial pain syndrome. All have been treated with pain medication. Claimant’s symptoms, treatment, diagnosis and restrictions have remained relatively unchanged since 1994. Claimant told Dr. Hsu that in February 2006 he experienced an exacerbation of his pain while working, which gave Dr. Hsu the impression that Claimant’s work duties changed. Accordingly, Dr. Hsu opined that Claimant had sustained a new work injury, and he restricted Claimant to bench work. However, Dr. Hsu clarified that Claimant did not have to work only at a bench; rather, it was his view that Claimant should avoid activities that exacerbate his pain.6

Employer presented the deposition testimony of James L. Cosgrove, M.D., who is board certified in physical medicine and rehabilitation with specialization in chronic pain management. Dr. Cosgrove performed an independent medical examination (IME) of Claimant on October 9, 2007, and he reviewed Claimant’s history and medical records. Dr. Cosgrove acknowledged that Claimant continued to experience neck and left arm pain as a result of his 1992 work injury, but he believed that Claimant was capable of working full-time at a wide range of light and medium-level work positions. Dr. Cosgrove saw no evidence that Claimant suffered a new injury, aggravation or any worsening of his condition in early 2006. If anything, Claimant’s condition had improved over time because he was taking less medication. Dr. Cos-grove saw no evidence of radiculopathy during the IME.

The WCJ accepted the testimony of Dr. Cosgrove over that of Dr. Hsu and Claimant.7 The WCJ found that the medical evidence showed that Claimant’s symptoms, diagnosis, treatment, restrictions and physical capabilities remained unchanged from 1999 to the present. As a result, the WCJ found that Claimant did not sustain a new injury in 2006. The WCJ acknowledged that Dr. Hsu limited Claimant to bench work in March 2006, but the WCJ was unable to reconcile that restriction with Dr. Hsu’s testimony that Claimant did not have to work only at a bench. The WCJ also found that although Claimant claimed to have suffered a loss of earnings after returning to work in February 1996, he did not offer any evidence to support that claim; Claimant did not offer the dates of his absences or the dollar amount of outstanding disability benefits.

The WCJ denied the claim petition, holding that Claimant did not sustain a new injury in 2006. The WCJ denied the reinstatement and modification petitions, concluding that they were time-barred because Claimant filed them more than 500 weeks after his benefits had been suspended. Claimant appealed, and the Board affirmed. Claimant now petitions this Court for review.8

[1247]*1247Petition for Review

Claimant raises one issue for our consideration. He asserts that the WCJ and the Board erred in dismissing his reinstatement petition as time-barred.9 Claimant argues that he became totally disabled in March of 2006 and that there is no time bar to a claimant’s right to seek total disability benefits. In the alternative, Claimant contends that because Employer conferred a benefit on him by providing him with a modified-duty job, he should be given three years from the date that benefit terminated to seek a reinstatement of total disability benefits.

Employer rejoins that the Workers’ Compensation Act10

Free access — add to your briefcase to read the full text and ask questions with AI

Related

C. Faulkner v. Ann's Choice, Inc. (WCAB)
Commonwealth Court of Pennsylvania, 2024
Verizon PA, LLC v. WCAB (Murray)
Commonwealth Court of Pennsylvania, 2020
Cozzone v. Workers' Compensation Appeal Board
73 A.3d 526 (Supreme Court of Pennsylvania, 2013)
Sladisky v. Workers' Compensation Appeal Board
44 A.3d 98 (Commonwealth Court of Pennsylvania, 2012)
Palaschak v. Workers' Compensation Appeal Board
35 A.3d 1242 (Commonwealth Court of Pennsylvania, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
35 A.3d 1242, 2012 Pa. Commw. LEXIS 34, 2012 WL 171062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palaschak-v-workers-compensation-appeal-board-pacommwct-2012.