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08/12/97 LESLIE SCHRIVER v. WORKERS' COMPENSATION

August 12, 1997

LESLIE SCHRIVER, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (DEPARTMENT OF TRANSPORTATION), RESPONDENT



Appealed From No. A94-3841. State Agency Workers' Compensation Appeal Board.

Before: Honorable Doris A. Smith, Judge, Honorable James R. Kelley, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Smith.

The opinion of the court was delivered by: Smith

OPINION BY JUDGE SMITH

FILED: August 12, 1997

Leslie Schriver seeks review of an order issued by the Workers' Compensation Appeal Board that affirmed, as modified, a decision of the Workers' Compensation Judge (WCJ) denying Employer's termination petition. The Board ordered that Employer continue to pay benefits of $160.50 per week to Schriver based on his 1978 average weekly wage rate rather than benefits ordered by the WCJ of $272.92 per week, based on Schriver's 1988 wage rate. The Board ruled that the WCJ erroneously relied on Schriver's 1988 wage rate without finding a 1988 work injury. Schriver argues that the decision of the WCJ was supported by substantial, competent evidence; that the WCJ properly granted Schriver's oral petition for review of his compensation rate; and that the Board erred in ruling that Schriver's claim was beyond the applicable three-year statute of limitations.

Schriver worked for the Department of Transportation (Employer) as an equipment operator and laborer until December 31, 1988. Schriver sustained injuries to his back in May 1978 and August 1981, and in both instances he received benefits. After his return to work in September 1983, Schriver experienced pain which increased in severity until he could no longer continue to work, effective December 31, 1988. Employer paid benefits calculated on Schriver's 1978 wages from January 3, 1989 to the present, pursuant to a supplemental agreement signed in June 1989. However, in September 1991, Employer petitioned to terminate benefits; at a hearing on December 19, 1991, Schriver's counsel orally petitioned the WCJ to review whether benefits should be calculated based on Schriver's 1988 wages, contending that in December 1988 Schriver suffered an aggravation of his prior work injury. Employer never objected to this petition.

The WCJ credited the testimony given by Schriver and his medical witnesses, Drs. George Baker, Robert Richards and Robert L. Fiss. The medical witnesses described their respective diagnoses of Schriver's condition, which included spinal stenosis of the lumbar spine, chronic strain of low back muscles and osteoarthritis of the lumbar spine. The witnesses also testified about Schriver's functional limitations and stated that, in their opinions, Schriver's total disability was causally related to his work. The WCJ denied Employer's termination petition and ordered Employer to continue paying benefits to Schriver based on his 1988 wages rather than the 1978 wages.

The Board affirmed the denial of Employer's termination petition but modified the WCJ's decision and ordered benefits based on Schriver's 1978 wages. The Board found that because the WCJ did not make a finding of fact that an injury occurred in 1988, his decision to award benefits based on Schriver's 1988 wages was not supported by substantial, competent evidence. The Board also noted that any claim for a 1988 injury filed at the time Employer filed its termination petition would have been time-barred by the three-year limitations period for filing claims. *fn1 See Section 315 of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 602.

Schriver directs the Court's attention to rulings by the WCJ at the December 19, 1991 and March 10, 1994 hearings that Schriver's oral petition for review would be made a part of the case and that, because of the petition for review, the WCJ could make findings on whether an aggravation injury had occurred in 1988, and, if so, whether Schriver would be entitled to a higher rate of compensation. At the March hearing, the WCJ gave Schriver an opportunity to submit wage information and Employer an opportunity to respond, after which the record would be closed. In response, Employer argues that the WCJ's failure to make a specific finding regarding an aggravation of Schriver's prior injury can be interpreted to mean that the WCJ decided that Schriver did not suffer an injury in 1988. *fn2 Moreover, Employer contends that Schriver failed to give timely notice of his aggravation injury and that the WCJ merely made a mistake in using the 1988 wage to calculate Schriver's benefits.

Schriver argues that although the WCJ did not make a specific finding that Schriver suffered an injury in 1988, the following findings establish that Schriver aggravated his previous work-related back injury as of December 1988:

13. Claimant worked as an equipment operator III for PDOT. Claimant was first injured in 1978. Claimant's foot slipped while stepping off a truck. Claimant twisted his back while he tried to prevent himself from falling. Claimant missed 11 months from work. Claimant's second injury occurred around August 2, 1981. Claimant was thrown around the cab of a high lift. Claimant felt paralyzed as a result of the work-related injury. Claimant was released to return to pre-injury job.

14. Upon return, 60% of claimant's job was spent laboring with hand tools. Claimant would cut brush, feed the brush machine, and drag brush. Further, claimant would shovel stones with a hand shovel and use a sledge hammer to drive guard rail posts down after digging holes. During winter months, claimant continued to perform snow removal with the high lift.

15. Claimant started experiencing pain across the small of his back radiating to legs, particularly after standing longer than 15 minutes.

16. Claimant's pain worsened. Claimant was unable to finish the task started. Claimant stopped working the end of December 1988 ...


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