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Liveringhouse v. Workers' Compensation Appeal Board

March 19, 2009

DENISE M. LIVERINGHOUSE, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (ADECCO), RESPONDENT



The opinion of the court was delivered by: Judge Smith-ribner

Submitted: January 2, 2009

BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

This matter involves review of an order of the Workers' Compensation Appeal Board (Board) affirming a decision of the Workers' Compensation Judge (WCJ) that granted the termination petition filed by ADECCO Temporary Services (Employer) effective February 23, 2006 and ended benefits payable to Denise M. Liveringhouse (Claimant). The WCJ also dismissed Claimant's review petition seeking to add carpal tunnel syndrome as an acknowledged work injury. The Board agreed that Claimant was fully recovered from her work-related injury and could perform an offered housekeeping job and that she failed to prove a work-related condition or symptoms in her upper extremities.

Claimant, proceeding pro se, questions why her severe carpal tunnel syndrome was not included as an injury of October 4, 2005 (referring to specific medical evidence and to the definition of "injury" in Section 301(c) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §411). Claimant also questions whether the Board, in its review, failed to read the evidence denied by the WCJ (citing the WCJ's acceptance of the opinions of Drs. Michael W. Molter and Richard Todd Kozakiewicz as credible but ignoring their deposition testimony concerning a carpal tunnel syndrome diagnosis). Further, she questions whether her deposition testimony was misquoted and ignored relating to the nature of her repetitive job duties (stating that the Board never clarified her duties or reviewed the WCJ's Findings of Fact in this regard).*fn1

I.

The WCJ found that Claimant sustained a work-related injury on October 4, 2005 and that a temporary notice of compensation payable described it as right shoulder pain. On March 22, 2006, Employer filed its termination petition alleging full recovery as of the date of an examination by Dr. Kozakiewicz on February 23, 2006. On March 31, 2006, Employer filed a petition to suspend benefits alleging that a specific job was offered to Claimant as of March 27, 2006. Claimant filed her review petition in May 2008 alleging that the description of her injury should be changed to include cervical and shoulder strain and carpal tunnel syndrome as the work-related injury. Employer later stipulated that the description should be amended to include cervical and shoulder strain, but Employer contested the carpal tunnel syndrome as being work related.

Claimant testified that she was employed by Employer at a Seven-D Industries plant beginning on June 8, 2005. She worked full time as a window sash cleaner, handling window frames and sashes of different sizes that came by on an overhead conveyor belt approximately six and one-half feet high. She took the frame or sash off the belt and turned 180 degrees to place it on her machine. She stated that frames that did not have glass had leftover welds in the inside corners; she would clip the inside corners with spring-loaded pliers to make sure that they were really clean so that glass could be put in the frame; and her machine cleaned the outside corners. While using the pliers Claimant would clean one corner with her right hand then switch to the left hand for the other corner; she would flip the frame or sash on the machine and clip the inside corners of the other end. She did 700 to 800 units a day, typically weighing from ten ounces to three or four pounds.

Claimant testified that she experienced soreness in her right shoulder and neck during the day, and she felt some tingling in her fingers before October 2005. On October 4, 2005, Claimant handled two frames; when she reached for the third she felt a twinge in her neck and a lightning sensation going into her arms. Her arms were numb from her elbows to her fingertips. She notified her supervisor and was taken to the emergency room, where she was examined by a physician and referred to her family doctor. He referred her to Dr. Robert Singer, an orthopedic surgeon, and Dr. Singer referred her to a physiatrist in his practice, Dr. Molter, who ultimately released Claimant to full duty after her visit on February 2, 2006. Claimant continued to experience soreness in her neck and shoulder and numbness and tingling and buzzing in her lower arms, and she began to see John C. Evans, D.O., a physiatrist, and also to see a chiropractor.

Claimant testified further that her driving and doing household chores including cooking are limited by the symptoms in her hands and forearms. She declined one offered office work job with Employer because she could not drive thirty-one miles to State College. She turned down a housekeeping job because she could not perform the duties due to the condition of her hands and arms. She confirmed upon cross-examination that she has smoked for thirty-three years and that before the onset of her symptoms she crocheted and knitted.

Dr. Molter testified that he first evaluated Claimant on November 28, 2005, noting complaints of right shoulder and left arm pain with numbness in both arms and hands. Her examination findings were normal. Upon re-evaluation on December 29, 2005, Claimant still exhibited poor effort on muscle strength testing. Dr. Molter ordered an EMG and nerve conduction study on January 11, 2006. The EMG showed bilateral median nerve compression at the level of the wrist that was severe in nature and showed mild to moderate ulnar neuropathy at the level of the right wrist. Dr. Molter stated in his EMG report that he discussed his belief with Claimant that her carpal tunnel was not covered by workers' compensation, but he expressed his willingness to continue treating her for cervical and shoulder strain covered by workers' compensation.

Dr. Molter's final examination of Claimant occurred on February 2, 2006. Claimant's cervical spine pain and tenderness had improved significantly; her primary complaint was paresthesia and numbness in her hand. The doctor released her to work without restriction as of February 16, 2006, and he testified that she could perform a housekeeper's duties as of her last visit..*fn2 The WCJ found: "On cross-examination Dr. Molter explained that he feels carpal tunnel syndrome could be related to job duties only when jobs involve the use of significant vibratory tools over long periods of time." Finding of Fact No. 30.

Dr. Kozakiewicz testified that he evaluated Claimant on February 23, 2006. She complained of deep pain in the right cervical/trapezius area and into the scapular area and also of numbness and tingling from the elbow distally and into all digits of both hands, right greater than left. He noted a history of crocheting and sewing, three pregnancies and smoking. His physical examination findings were normal, and he opined that Claimant had recovered fully from the October 2005 work injury as of the date of the examination. He placed no restriction in regard to the work injury and prescribed no further treatment for the work injury.

Dr. Kozakiewicz further opined that Claimant's bilateral carpal tunnel syndrome as diagnosed by the EMG is not related to the October 2005 work injury because the motions that she performed when she was injured would not cause carpal tunnel syndrome. Furthermore, the onset of carpal tunnel syndrome is consistent with Claimant's age, her gender, her body habitus, her crocheting and sewing, her three pregnancies and her smoking. Dr. Kozakiewicz did comment on cross-examination that he was ...


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