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10/17/97 MICHAEL FRONTINI v. WORKERS' COMPENSATION

October 17, 1997

MICHAEL FRONTINI, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (PARKS MOVING & STORAGE), RESPONDENT



Appealed From No. A96-0938. State Agency Workers' Compensation Appeal Board.

Before: Honorable Rochelle S. Friedman, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles A. Lord, Senior Judge. Dissenting Opinion BY Judge Friedman. Opinion BY Senior Judge Lord.

The opinion of the court was delivered by: Lord

OPINION BY SENIOR JUDGE LORD

FILED: October 17, 1997

Michael Frontini (Claimant) appeals an order of the Workers' Compensation Appeal Board (Board) affirming a Workers' Compensation Judge's (WCJ) decision to terminate Claimant's benefits.

While employed with Parks Moving & Storage (Employer), Claimant suffered a work-related injury to his right hand on December 18, 1993 for which he received total disability benefits. (WCJ's Findings of Fact, Nos. 3, 5.) On February 4, 1994, Claimant unintentionally signed a final receipt, believing that he was merely signing a receipt for his benefits check. (WCJ's Finding of Fact, No. 5.) Subsequently, Claimant filed a petition to set aside the final receipt as of February 11, 1994, alleging that he had never signed a final receipt, that he had not fully recovered from his work injury and that he had not returned to work at wages equal to his time-of-injury wages. (WCJ's Finding of Fact, No. 1.) The employer answered claimant's petition denying all the allegations contained therein, averring that claimant signed a final receipt acknowledging that he was able to return to work without loss of earning power. Employer's answer specifically denied that claimant was not fully recovered from his work-related injury and was not released to return to work by his examining physician.

At hearings before the WCJ on Claimant's petition, Claimant testified that, although he was asked to sign a final receipt on February 4, 1994, he refused to do so because he was still having problems with his right hand and was still receiving medical treatment. Claimant did sign the final receipt at that time, but apparently because he thought it was a receipt for his benefits check. Although he gave contradictory statements regarding the extent of his abilities, Claimant further testified that he remained disabled as a result of the work-related injury. Claimant offered the deposition testimony of Christopher Morgan, M.D., a specialist in physical medicine and rehabilitation. Dr. Morgan testified that he had treated Claimant since the work-related injury and had released Claimant to return to work on February 11, 1994, even though Dr. Morgan did not consider Claimant to be fully recovered from his work-related injury at that time. Dr. Morgan also stated that, on February 25, 1994, he began to believe that Claimant might be suffering from reflex sympathetic dystrophy in his right hand and, accordingly, Dr. Morgan restricted Claimant to modified duty with limited use of his right hand. As of March 25, 1994, Dr. Morgan recommended that Claimant not use his right hand or wrist at all, and, as of April 19, 1994, Dr. Morgan diagnosed Claimant as suffering from reflex sympathetic dystrophy. In support of its answer to Claimant's petition, Employer presented the testimony of Anthony Babusci, Employer's operations manager. Babusci denied that he told Claimant he was merely signing a receipt for his check; however, Babusci also stated that he informed Claimant that he had to sign the form in order to receive his check.

In opposition to Claimant's medical testimony, Employer presented the deposition testimony of Robert P. Mantica, M.D., a board-certified orthopedic surgeon, who examined Claimant on May 23, 1994. Based upon this exam, and on Claimant's medical records, Dr. Mantica opined that Claimant does not suffer from reflex sympathetic dystrophy and, as of the date of the exam, could return to work upon completion of a work-hardening program. Employer also offered the testimony of Brian McDowell to prove that Claimant was not suffering a disability in his right hand. McDowell testified that, on March 25, 1995, he observed Claimant punch his girlfriend, Carol Boyer, on the left side of her face with his right hand and saw Claimant lock fingers with her and twist her hands back until she fell to the floor. McDowell then took Boyer to the hospital because she was complaining of pain in her hands. Boyer's testimony corroborated that of McDowell. Claimant acknowledged that he had a confrontation with Boyer on that day, but denied that it became physical. The WCJ, however, believed McDowell's and Boyer's version of events, in which Claimant used his right hand with enough strength to hurt Boyer. (WCJ's Findings of Fact, Nos. 9 - 11.)

The WCJ made various credibility determinations based upon the testimony. The WCJ found Claimant's testimony reliable and credible with regard to his signature on the final receipt; however, the WCJ rejected Claimant's testimony in which he indicated that he continues to suffer significant residual problems as a result of the work-related injury. (WCJ's Finding of Fact, No. 5.) The WCJ rejected as neither credible nor convincing Dr. Morgan's opinion that Claimant suffers from reflex sympathetic dystrophy and continues to be partially disabled. (WCJ's Finding of Fact, No. 13.) In contrast, the WCJ found credible and "very convincing" Dr. Mantica's testimony that Claimant does not suffer from reflex sympathetic dystrophy and is able to return to work. (WCJ's Finding of Fact, No. 15.)

Having made these credibility determinations, the WCJ found that Claimant had not knowingly executed a final receipt. The WCJ also found that claimant had not fully recovered from his work injury at the time he mistakenly signed the final receipt; however, the WCJ found that Claimant had fully recovered as of May 23, 1994. (WCJ's Finding of Fact, No. 24.) Based on these findings, the WCJ concluded that the Claimant had met his burden of proving that the final receipt should be set aside, and also concluded that Employer had met its burden of proving that Claimant was no longer disabled by his work injury. Thus, the WCJ ordered Claimant's benefits to be reinstated through May 22, 1994, and terminated as of May 23, 1994. Claimant appealed to the Board, which affirmed.

On appeal to this Court, Claimant argues that the Board erred in affirming the WCJ's termination of benefits because Employer never filed a petition requesting termination of those benefits. Claimant relies principally on the authority of Boehm v. Workmen's Compensation Appeal Board, 133 Pa. Commw. 455, 576 A.2d 1163 (Pa. Commw. 1990). Employer counters claimant's argument by asserting that, because Claimant was on notice that Employer sought termination, Employer did not need to file a separate termination petition.

In Boehm, an employer filed a modification petition, alleging that the claimant had returned to light duty work. After consideration of the evidence, the referee concluded that the claimant was partially disabled for a limited period and that his disability terminated after that period. Although the WCAB affirmed, we reversed, concluding that the referee erred when he decided, sua sponte, to consider the employer's petition for modification as a petition for both modification and termination. In doing so, we rejected the employer's argument that neither a claimant nor an employer is bound by the form of the petition where the facts warrant relief. Noting that the Workers' Compensation Act *fn1 is remedial and intended to benefit the worker, we concluded that a referee could look beyond the pleadings only where the facts warranted relief for a claimant ; with respect to an employer, we held that a referee was empowered to grant only such relief as the employer actually requests. Because the employer in Boehm only requested a modification of the claimant's benefits, we determined that the referee lacked authority to terminate those benefits.

Subsequent to our decision in Boehm, we have had occasion to address the issue of a WCJ's authority "to take appropriate action as indicated by the evidence upon the filing of any petition referenced therein by either party." Stanley Lojak Contractor v. Workmen's Compensation Appeal Board (Cottman), 661 A.2d 923, 927 (Pa. Commw. 1995).

In Lojak Contractor, the employer filed a termination petition alleging that the claimant had returned to work without restriction or loss of earning power. The claimant thereafter filed a penalty petition which was answered by the employer. The referee terminated benefits as of one year and a half after the date requested by the employer in its termination petition, although the employer had never amended that termination petition. The Board, citing Boehm and Thomas v. Workmen's Compensation Appeal Board (Winzek Catering Service), ...


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