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08/06/97 GERALDINE LOMBARDO v. WORKERS'

August 6, 1997

GERALDINE LOMBARDO, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (TOPPS COMPANY, INC.), RESPONDENT



Appealed From No. A95-3282. State Agency Workers' Compensation Appeal Board.

Before: Honorable Dan Pellegrini, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Senior Judge Silvestri.

The opinion of the court was delivered by: Silvestri

OPINION BY

SENIOR JUDGE SILVESTRI

Filed: August 6, 1997

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 check 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 entered 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, *fn1 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, ...


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