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10/16/97 EUGENE FIGURED v. WORKERS' COMPENSATION

October 16, 1997

EUGENE FIGURED, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (USAIR, INC.), RESPONDENT; USAIR, INC. AND INSURANCE COMPANY OF THE STATE OF PA, C/O ALEXIS, INC., PETITIONERS V. WORKERS' COMPENSATION APPEAL BOARD (FIGURED), RESPONDENT



Appealed From No. A94-2600. State Agency Workers' Compensation Appeal Board.

Before: Honorable Dan Pellegrini, Judge, Honorable James R. Kelley, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Senior Judge Narick. Judge Leadbetter did not participate in the decision in this case.

The opinion of the court was delivered by: Narick

OPINION BY SENIOR JUDGE NARICK

FILED: October 16, 1997

The issue before this Court is whether the Workers' Compensation Judge (WCJ) correctly denied an employer's termination petition, instead, granting a suspension while denying a claimant's reinstatement petition.

Eugene Figured (Claimant) and USAir, Inc. *fn1 (USAir) have filed cross-appeals from the order of the Workers' Compensation Appeal Board (WCAB) that affirmed the WCJ's denial of USAir's termination petition and granting a suspension, while denying Claimant's reinstatement petition. We affirm.

Claimant worked as an airline mechanic for over thirty years for USAir until he accepted USAir's retirement package at the end of 1992. On February 28, 1991, Claimant injured his low back during the course and scope of his employment with USAir. USAir accepted liability, issuing a notice of compensation payable. On November 19, 1992, USAir filed a termination petition, alleging that as of March 21, 1991, Claimant returned to work with no loss of wages. Claimant filed a timely answer, acknowledging a return to work on March 21, 1991, with no loss of wages, but averring a residual impairment without a loss of wages. Claimant requested a suspension of benefits.

Claimant then filed a reinstatement petition wherein he alleged that on or after January 1, 1993, his injury recurred and worsened until it became disabling. This reinstatement petition was filed after Claimant retired. USAir filed a timely answer to Claimant's petition, denying all material allegations.

USAir's termination petition and Claimant's reinstatement petition were consolidated for hearings before the WCJ. During the course of the litigation, Claimant testified, as well as his current treating physician, Max Karpin, M.D. USAir submitted into evidence the deposition testimony of Jeffrey Malumed, M.D., Robert Bachman, M.D. and USAir's Administrative Representative, Judith Combs.

The WCJ's Findings of Fact regarding the medical testimony are as follows:

3. In support of its petition defendant presented the testimony of Jeffrey Malumed, M.D., a Board Certified Orthopedic Surgeon, who examined Claimant on several occasions, September 6, 1990, March 6, 1991, March 18, 1991, April 11, 1991, and September 8, 1993. Dr. Malumed testified that he is a 'panel physician' for U.S. Air and examined Claimant on several occasions in connection with his complaints of back pain. The doctor was of the opinion that Claimant displayed some symptoms secondary to arthritis, and he approved Claimant's return to work at both the March 18, and April 11, 1991 visits stating 'Eugene is improving in his lower back. He still gets radiations down his left leg which is occasional in nature.' This doctor concluded that although Claimant could return back [sic] to his pre-injury occupation, he would continue to have back pain on occasion, and would be helped by continued home therapy. I find that [sic] this testimony to be credible and adopt it by the facts of this case.

4. In further support of its petition Defendant presented the testimony of Robert Bachman, M.D., a Board Certified Orthopedic Surgeon, who examined Claimant on August 3, 1993. Doctor Bachman examined Claimant as well as reviewed certain medical reports including MRI studies and reports of Dr. Gorrin. Dr. Bechman [sic] was of the opinion that Claimant still had occasional back pain with impairment referable to degenerative changes in the spine. This physician was of the opinion that Claimant may not be able to perform his pre-injury employment but did not have the benefit of a work capacity study to support his Conclusion. Dr. Bachman was further of the opinion that as of the time of his examination Claimant suffered no residual impairment for his original work injury and any restrictions were a result of the degenerative arthritis. I find the opinion of this physician to be credible in part in that Claimant could not return to his pre-injury employment without continuing pain or restrictions and adopt that as of the fact of this case.

7. In further support of his petition Claimant presented the testimony of Max Karpin, M.D., a Board Certified Neuro Surgeon [sic] who saw the Claimant for the first time on July 8, 1993. Dr. Karpin was of the opinion that Claimant continued to suffer lower back pain as a result of his February 1991 injury and that he was not capable of returning to his pre-injury employment at this time nor at any previous time. I find the testimony of Dr. Karpin to be less than credible concerning Claimant [sic] medical condition at any time prior to his initial examination of July 8, 1993 at [sic] his views are specifically rejected.

Based upon these findings of fact the WCJ determined that USAir failed to meet its burden of proving that Claimant's work-related disability had totally ceased at any point in time and thus, held that it was not entitled to a termination of benefits. (Conclusion of Law No. 2.) The WCJ instead granted a suspension of benefits, asserting that USAir had demonstrated that Claimant's condition has sufficiently improved ...


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