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Ward v. Workers' Compensation Appeal Board

March 2, 2009

WILLIAM WARD, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (CITY OF PHILADELPHIA), RESPONDENT



The opinion of the court was delivered by: Judge Simpson

Submitted: January 2, 2009

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.

OPINION

William Ward (Claimant) contends a Workers' Compensation Judge (WCJ) erred by denying his petition to reinstate total disability benefits. Specifically, Claimant asserts the record does not support the finding he failed to prove his physical condition deteriorated to the degree he is no longer capable of performing work previously found to be within his physical restrictions. The WCJ's finding, Claimant also urges, constitutes a capricious disregard of competent evidence. Upon review, we affirm.

Claimant worked for the City of Philadelphia (Employer) as a fire fighter. On February 7, 1992, Claimant sustained a sprain/strain of the neck and low back during the course of his employment. Claimant performed light duty work for a short period of time after his injury. In June of 1992, however, Claimant began receiving total disability benefits.

In 1999, Employer sought modification of Claimant's benefits based on his failure to apply in good faith for occupationally appropriate work (modification proceedings). Based on Employer's credible evidence, a WCJ found Employer proved Claimant is capable of work with restrictions and located several jobs Claimant could perform, but for which he failed to apply in good faith.*fn1

Effective June 1997, the WCJ modified Claimant's benefits to partial disability based on the highest paying job of an assembler.

Employer subsequently sought termination of Claimant's partial disability benefits on the basis he fully recovered from the work injury. Finding Claimant's family physician credible that Claimant did not fully recover from the work injury, a different WCJ denied Employer's petition. Claimant continued to receive partial disability benefits.

In April 2006, Claimant filed a petition to reinstate total disability benefits, which is the subject of this appeal. Claimant alleged his disability increased to the point he is no longer capable of working in any capacity. Employer denied the allegations of the reinstatement petition, and hearings before a third WCJ ensued. During the course of the WCJ's proceedings, Claimant exhausted his right to partial disability benefits.*fn2

Before the WCJ, Claimant testified as to the nature of his work injury and his current medications and treatments. Claimant stated he experiences more frequent episodes of back pain than in the past, and that his medications cause grogginess, constipation, blurry vision and drowsiness. Claimant does not know of any type of work he is capable of performing but if he did know of such work, he would try it. Significantly, Claimant admitted he has taken strong narcotics since 1992, and has had difficulty sleeping and driving since that time. The WCJ found Claimant reasonably credible but noted he failed to address the specific issue of whether he is capable of performing the assembler position.

Dr. Donald Fox (Family Physician) testified on Claimant's behalf. Family Physician regularly examines Claimant in order to monitor his pain medications. He opined Claimant is unable to work in any capacity. Family Physician also did not address whether Claimant is able to perform the assembler position. The WCJ found Family Physician's testimony reasonably credible but irrelevant to Claimant's burden of proof. In particular, Physician opined as early as 1997 that Claimant is totally disabled from work. This is the same opinion Family Physician offered, and a WCJ rejected, during the modification proceedings. The WCJ concluded Family Physician's testimony was "not persuasive."

Claimant also presented the testimony of his orthopedic surgeon, Dr. Scott Rushton (Claimant's orthopedist). Relevant to this appeal, Claimant's orthopedist expressed concerns regarding the effects of medication on Claimant's ability to work. He did not testify Claimant's physical condition worsened to the degree he cannot perform the assembler position. The WCJ found the orthopedist's opinion neither credible nor persuasive.

Based on the above,*fn3 the WCJ concluded Claimant failed to meet his burden of proof on the reinstatement petition, that is, his physical condition worsened such that he is no longer capable of performing the assembler position previously determined to be within his capabilities and for which he failed to apply in good faith. Accordingly, the WCJ denied Claimant's reinstatement petition. The Board affirmed.

On review,*fn4 Claimant urges the WCJ erred in concluding he failed to address the issue of whether he is capable of performing the assembler position. He further asserts the WCJ's finding ...


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