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Michel v. Workers' Compensation Appeal Board

February 26, 2009


The opinion of the court was delivered by: Senior Judge Flaherty

Submitted: January 2, 2009



Raymond Michel (Claimant) petitions for review from an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) terminating his workers' compensation benefits. We affirm for the reasons stated below.

Claimant sustained a work-related injury on June 18, 2003. United States Steel Corp. (Employer) acknowledged a low back strain. Claimant was given a sedentary duty position and began receiving partial disability benefits. Employer subsequently filed a Termination Petition seeking to terminate Claimant's benefits as of September 30, 2003.*fn1

Employer presented the testimony of Michael Seel, M.D, board certified in orthopedic surgery, who examined Claimant on September 30, 2003. Dr. Seel noted an MRI of the lumbar spine and a bone scan, both of which were conducted on June 21, 2003, were normal. A CT myelogram conducted September 18, 2003 revealed minimal disc bulges but symmetric nerve root sleeve filling. There was no pressure on the nerve roots. According to Dr. Seel, Claimant sustained a lumbar strain as a result of his work injury but was fully recovered and capable of returning to work without restrictions as of the date of his examination. He acknowledged that Claimant had degenerative changes in the lumbar spine. He opined Claimant's pain was from a non-organic, or non-anatomic, source and explained that there was no objective evidence to support Claimant's continued complaints of pain.

Claimant testified that while working for Employer, he was struck in the chest by a brace bar. He had immediate pain in his low back and groin. He explained that although he was capable of performing sedentary duty following his work injury, he was unable to do his pre-injury job. Ultimately, he was assigned to a guard shack letting tractor-trailers in and out of Employer's premises. Claimant stated that he continued to have constant pain. Claimant presented the testimony of Hong Shi, M.D., board certified in physical medicine and rehabilitation, who diagnosed him with left sacroiliac joint dysfunction and chronic low back pain. He concluded Claimant was not fully recovered from his work-related injury of June 18, 2003.

By a decision circulated January 5, 2005, the WCJ terminated Claimant's benefits effective September 30, 2003. Claimant appealed this decision to the Board. Moreover, he requested a rehearing before the WCJ in order to present after-acquired evidence.

The Board treated Claimant's request for a rehearing as a request for a remand. It vacated the WCJ's order and remanded the matter for submission of additional evidence. Specifically, the Board indicated that Claimant could present evidence from Peter Gerszten, M.D., who performed surgery on July 5, 2005, six months after the WCJ's decision. The Board further stated that Employer should be permitted to present rebuttal evidence to any evidence submitted by Claimant. The Board instructed that the WCJ, after receiving additional evidence, should issue a new decision based on all evidence contained in the record.

On remand, Claimant testified that he underwent an intradiscal electrothermy procedure on January 18, 2005. He explained that this procedure provided him with great relief but after several months, his symptoms returned. He underwent a spinal fusion on July 5, 2005. The spinal fusion provided relief to pain he was experiencing in his groin, but he stated he continues to have pain in his low back.

Claimant presented the testimony of Dr. Gerszten, board certified in neurological surgery, who first saw him on November 19, 2004. He explained that Claimant presented with pain in his low back and intermittent left groin pain. He explained that a discogram that Claimant underwent on June 14, 2004 was positive at the L4-5 and the L5-S1 levels and showed annulus tears. Consequently, Dr. Gerszten ordered an intradiscal electrothermy. According to Dr. Gerszten, Claimant exhibited marked improvement following the procedure. Claimant's pain returned, however, and a spinal fusion was eventually performed. Thereafter, Claimant's groin pain resolved. Claimant's back pain improved, but was still present. Dr. Gerszten opined that Claimant's work injury of June 18, 2003 led to the annular tears at L4-5 and L5-S1. He did not believe Claimant was fully-recovered from the work injury and explained Claimant needed continued treatment.*fn2

The following discussion took place during Dr. Gerszten's deposition:

A. ...Dr. Spiro ordered a test called a provocative discogram, and this is a very important test because it is a blinded test. It is a test that is performed here at this institution in Pittsburgh in which, with the patient is awake and lying on their stomach, tiny needles are inserted into the disk spaces of the spine, and this is performed by an interventional radiologist, and a small amount of fluid and contrast material are injected into the spaces.

In order for the test to be positive, the patient's pain must be reproduced in a concordant fashion. Meaning it must reproduce his typical pain, not just any pain; and then there also has to be normal levels that when you inject an amount of fluid, they do not cause pain.

Then after that portion of the test, the patient undergoes a CAT scan that shows a tear of the annulus. Meaning the outer strong layer of the disk, and he indeed had these tears that were the underlying etiology of his pain.

In Mr. Michel's case, this test was performed on June 15th, 2004, and it was markedly positive at the L4-5 and L5-S1 levels in that it reproduced his pain precisely including the groin pain, and he-- at a normal level, such as L3-4, it didn't cause any ...

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