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DONALD W. PATTERSON v. WORKMEN'S COMPENSATION APPEAL BOARD (MANPOWER/TRANSPERSONNEL (02/22/89)

decided: February 22, 1989.

DONALD W. PATTERSON, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (MANPOWER/TRANSPERSONNEL, INC.), RESPONDENTS. DONALD PATTERSON, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (MANPOWER/TRANSPERSONNEL, INC.), RESPONDENTS



Appeals from the orders of the Workmen's Compensation Appeal Board, in the cases of Donald Patterson v. Manpower/Transpersonnel, Inc., No. A-92745 dated June 22, 1987, and No. R.P. 4467, dated April 4, 1988.

COUNSEL

Richard J. Russell, for petitioner.

Eugene F. Scanlon, Jr., Dickie, McCamey & Chilcote, P.C., for respondent, Manpower/Transpersonnel, Inc.

Judges Doyle and McGinley, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 123 Pa. Commw. Page 542]

Before the Court are two consolidated petitions for review filed by Donald Patterson (Claimant) challenging the orders of the Workmen's Compensation Appeal Board (Board) granting the termination petition of Manpower/Transpersonnel, Inc. (Employer) and denying Claimant's petition for rehearing. We reverse the Board on the rehearing issue and vacate on the termination petition.

Petitioner worked as a truck driver for Employer. On November 18, 1983, Claimant was injured in the course of his employment when he was struck by an automobile while adjusting the brakes of his truck. Claimant received benefits for total disability pursuant to a notice of compensation payable for injuries to his neck, left arm and upper extremity.

On December 20, 1985, Employer filed this instant petition for termination accompanied by the affidavit of Doctor Roy Temeles asserting Claimant was fully recovered and could return to his pre-injury job. Doctor Temeles testified that although Claimant "complained bitterly" of pain in his neck as motion was tested in his

[ 123 Pa. Commw. Page 543]

    shoulders and elbows, the doctor was unable from a "hard-core objective picture" to find any evidence of physical disease or impairment (R.R. 49a). Claimant's treating physician, Doctor Sang Moon Kim, stated that Claimant continued to suffer from a severe cervical strain and could not return to heavy work. The referee found the testimony of Doctor Temeles credible and granted Employer's termination petition, which order the Board affirmed. Claimant's appeal from this order of the Board is docketed at No. 2115 C.D. 1987.

Claimant continued to undergo cervical treatment while his appeal of the referee's decision was before the Board. One month after the Board's decision, Claimant underwent a Magnetic Resonance Imaging (MRI) scan at Johnstown Regional MRI Center on July 16, 1987. MRI is a relatively new technique similar to a CAT scan which expands the advantages of a CAT scan in detecting soft tissue injuries by viewing the various types of tissues through a magnetic field. The MRI scan revealed the presence of herniated discs at the C5-6 and C6-7 levels. Claimant was further examined by Doctor Robert Holst, a board certified neurosurgeon, and Doctor George W. Wheeling, a board certified orthopedic surgeon, both of whom confirmed the existence of cervical disc herniations and recommended that Claimant undergo a myelogram.

Claimant's petition for rehearing on the basis of this newly discovered evidence was denied by the Board. The Board did not rule or comment on Claimant's evidence but stated that Claimant should pursue the option of filing a reinstatement petition. Claimant's ...


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