Supervalu, Inc. v. Workers' Compensation Appeal Board

755 A.2d 715, 2000 Pa. Commw. LEXIS 355
CourtCommonwealth Court of Pennsylvania
DecidedJune 28, 2000
StatusPublished
Cited by10 cases

This text of 755 A.2d 715 (Supervalu, Inc. 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
Supervalu, Inc. v. Workers' Compensation Appeal Board, 755 A.2d 715, 2000 Pa. Commw. LEXIS 355 (Pa. Ct. App. 2000).

Opinions

KELLEY, Judge.

Supervalu, Inc. (formerly Wetterau, Inc.) and Helmsman Management Services, Inc. (collectively, Employer) appeal [717]*717from that portion of the order of the Workers’ Compensation Appeal Board (Board) affirming the decision of a Workers’ Compensation Judge (WCJ) dismissing Employer’s review request regarding the disability benefits awarded to Joseph N. Bowser (Claimant) pursuant to the Workers’ Compensation Act (Act).1 We affirm.

On April 29, 1988, while employed as a fork lift operator with Employer, Claimant sustained a work-related injury to his left leg, involving the area from the knee through the foot. Specifically, Claimant sustained an open fracture of his left tibia and fibula, a dislocation of his left foot and a degloving injury to his left fifth toe which resulted in an amputation of that toe. Claimant received workers’ compensation benefits pursuant to a notice of compensation payable.

On February 26, 1990, Claimant returned to work with Employer in a modified position. Claimant signed a supplemental agreement reflecting that he returned to work without any wage loss, and his disability benefits were suspended.

Subsequently, Claimant filed a claim petition in which he alleged a specific loss of use of his left foot. Claimant also sought the commutation of his disability benefits. On March 26, 1993, the WCJ granted the claim petition, finding that Claimant had lost the use of his left foot for all practical intents and purposes. The WCJ also granted Claimant’s petition to commute the 250 weeks of benefits payable to him as a result of this specific loss.

Claimant continued working in the modified position with Employer without a wage loss until April 13, 1994, when Employer closed its plant. On May 9, 1994, Claimant filed a reinstatement petition in which he alleged that, as a result of the plant closure, his compensable disability had recurred as of April 13, 1994. On June 9, 1994, Employer filed an answer denying that Claimant suffered a disability from his work-related injury.2

Finally, on September 25,1995, Employer filed a petition to suspend Claimant’s benefits alleging that Claimant’s loss in earnings after April 13, 1994 was a result of the plant closure and not a result of his work-related injury. All of the petitions were consolidated and hearings before a WCJ ensued.

At the hearings, Claimant testified on his own behalf and presented the deposition testimony of Barry L. Reimer, M.D., a physician board certified in orthopedic surgery. Employer presented the deposition testimony of Rodney G. Gordon, M.D., a physician board certified by the Royal Australian College of Surgeons.

Claimant testified that he cannot run or jog, he cannot stand for long periods of time and he has difficulty standing on cement. Claimant also stated that he can only climb a couple of steps at a time and he can walk for about fifteen minutes.

Dr. Riemer testified that Claimant’s condition has worsened since he completed his rehabilitation in that his leg has increased [718]*718fatigability. Dr. Riemer also testified that Claimant has trouble with his foot, ankle calf and knee and that Claimant has crushed muscle in his leg up to his calf. Dr. Riemer stated that Claimant cannot run, cannot stand for a very long period of time and can climb only with great difficulty. He also stated that Claimant would not benefit from additional surgery unless Claimant had an amputation. Dr. Riemer explained that an artificial leg is more flexible than - Claimant’s ankle. Further, Dr. Riemer testified that an amputation would help to alleviate Claimant’s pain. With regard to whether Claimant had lost the use of his lower left leg for all intents and purposes, Dr. Riemer testified that “that’s pretty close to it”, that Claimant would function better with an amputation than he is now, and that he would probably function better with a prosthesis than with what he has now.

Dr. Gordon testified that Claimant reported that he could walk about two miles with some difficulty, that standing and sitting was not a problem, that he cannot jog or run and that he limps all the time. Dr. Gordon stated that Claimant has very significant arthritis and a very significant disability with his left lower leg. Dr. Gordon stated that the lower leg’s function is to move the foot and that Claimant’s lower leg does not move his foot because the joints cannot move. Dr. Gordon opined that, based on his examination, Claimant functioned at a lesser level with his leg than someone would function with a below-the-knee amputation. As a result, Dr. Gordon testified that Claimant had lost the use of his left lower leg for all intents and purposes. According to Dr. Gordon, although Claimant is permanently disabled, he could perform the job of a sit-down forklift operator even if his lower left leg was amputated.

On September 25, 1996, the WCJ issued a decision and order disposing of the petitions in which he made the following relevant findings of fact:

8. [Claimant] has continued to the present time to have severe limitations caused by his injury. These include a stiff and inflexible left foot caused by post traumatic arthritis in all joints of that foot; severe restriction of left ankle movement; muscle and nerve damage in the calf of his left leg which reduces the power of calf muscles; and a restriction of motion of his left knee which causes minimal disability. The facts stated in this finding are based upon the testimony of Dr. Gordon and that of Dr. Riemer. There was not a significant difference in their testimony as to these stated restrictions, although they did differ somewhat as to detail and emphasis.
9. [Claimant] has not lost the use of his left lower leg for all practical intents and purposes. That portion of this leg which is between his knee and his ankle continues to have significant function. It enables him to walk for short periods of time; to stand for periods of time, especially on soft surfaces; to do limited climbing such as a couple of ladder steps; and to do work such as that which he was doing until he was laid off. The facts stated in this finding were not disputed by [Claimant] or by either physician.
10. [Claimant] has never recovered from his injury to a point where he can perform all of the duties which he was performing at the time of his injury. This finding is based upon the pertinent testimony of both physicians and upon [Claimant]’s testimony.
11. [Claimant] continues to the present time to be able to perform the modified work with a fork lift which he was performing until he was laid off. This finding is based upon the testimony of Dr. Gordon and upon that of [Claimant]. Dr. Riemer’s testimony is rejected to the extent that he stated that [Claimant] is unable to perform this work. Dr. Riemer had doubts about [Claimant]’s ability to perform this work from its [719]*719inception, but [Claimant] did perform the work for almost 4 years and testified that he remains able to perform it. Dr. Riemer did not testify that there was any significant structural worsening of [Claimant’s injured leg; he testified only that he is a little bit worse because of increased [fatigability].
18. The Employer did not offer employment to [Claimant] after he was laid off but it did provide to all laid off employees, including [Claimant], an opportunity to apply for work elsewhere in its organization.

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Supervalu, Inc. v. Workers' Compensation Appeal Board
755 A.2d 715 (Commonwealth Court of Pennsylvania, 2000)

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755 A.2d 715, 2000 Pa. Commw. LEXIS 355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/supervalu-inc-v-workers-compensation-appeal-board-pacommwct-2000.