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Lisanti Painting Co. v. Workers' Compensation Appeal Board

May 5, 2009

LISANTI PAINTING COMPANY AND DONEGAL COMPANIES, PETITIONERS
v.
WORKERS' COMPENSATION APPEAL BOARD (STARINCHAK), RESPONDENT
LISANTI PAINTING COMPANY, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (STARINCHAK), RESPONDENT



The opinion of the court was delivered by: Judge McGINLEY

Argued: January 28, 2009

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

Lisanti Painting Company (Employer) petitions for review of the order of the Workers' Compensation Appeal Board (Board) which reversed the Workers' Compensation Judge's (WCJ) suspension of benefits for Gregory Starinchak (Claimant) for a period of thirty-nine and one-seventh weeks. Employer also petitions for review of the Board's order which denied Employer's petition for rehearing/reconsideration.

Claimant sustained a work-related injury on September 21, 2004. Employer issued a Notice of Compensation Payable (NCP) on October 14, 2004, which identified Claimant's injury as a comminuted fracture of the right distal phalanx. Claimant received temporary total disability benefits pursuant to the NCP. On May 30, 2006, the parties executed a supplemental agreement which expanded Claimant's injury to include a right shoulder impingement syndrome.

On October 27, 2006, Employer petitioned to suspend benefits as of March 13, 2006, on the basis that:

Claimant refused to undergo necessary right shoulder surgery which has been advocated by at least 3 surgeons in connection with the prior work injury of 9/21/04. Claimant's refusal [sic] this reasonable medical services [sic] has, [sic] caused the Claimant to continue to have a lack of earning power and has increased incapacity. Pursuant to Section 306(f)(1)(8) 77 P.S. Section 531(8) the Judge should issue an order confirming the fact Claimant has forfeited his WC benefits.

Petition to Suspend Benefits, October 27, 2006, at 3; Reproduced Record (R.R.) at 3a.

At the hearing before the WCJ, Employer called Claimant on cross-examination. Claimant testified that his treating physician, Robert J. Donofrio, M.D., Ph.D., (Dr. Donofrio) recommended that he undergo a right shoulder operation on March 29, 2005, and on November 22, 2005. Claimant admitted that Employer's physician, Jon B. Tucker, M.D. (Dr. Tucker), recommended the same procedure on September 25, 2006. Notes of Testimony, December 5, 2006, at 10-11; R.R. at 17a-18a. Eventually, Claimant underwent surgery on December 14, 2006. Notes of Testimony, February 20, 2007, at 5; R.R. at 61a.

Employer presented the medical report of Dr. Tucker. Dr. Tucker examined Claimant in March 2006. At that time Dr. Tucker diagnosed Claimant with work-related right upper extremity disorder that carried a medical diagnosis of impingement syndrome. Dr. Tucker subsequently reviewed medical records and reiterated his diagnosis of impingement syndrome of the right shoulder. Report of Jon B. Tucker, M.D., September 25, 2006, (Dr. Tucker Report) at 1-2; R.R. at 41a-42a. Dr. Tucker recommended that Claimant have "an arthroscopic procedure that has a greater than 92 percent chance of very good to excellent results with cessation of disability after a three-month recovery. This refusal to avail himself of appropriate medical care is causing his ongoing disability." Dr. Tucker Report at 2; R.R. at 42a.

Claimant presented the medical report of Dr. Donofrio. Dr. Donofrio recommended that Claimant have an arthroscopic acromioplasty. Report of Robert J. Donofrio, M.D., Ph.D., November 21, 2006, at 1; R.R. at 35a.

The WCJ granted the suspension petition and suspended benefits for thirty-nine and one-seventh weeks commencing with the date of the circulation of the order, April 11, 2007. The WCJ made the following finding of fact and conclusions of law:

FINDINGS OF FACT

10. Based upon a review of the foregoing, and a review of all the evidence of record, considered in its entirety, this adjudicator finds as fact that the claimant refused reasonable services of his surgeon, Dr. Donofrio. The evidence shows that claimant and his counsel were on notice as early as December 20, 2005 that arthroscopy had been recommended for the shoulder problem. In addition, Dr. Rodosky on April 27, 2005, had recommended this. Also, Dr. Tucker had recommended this in March of 2006 and September 2006. Dr. Donofrio reiterated his opinion that surgery was appropriate in a letter of November 21, 2006. Dr. Donofrio stated: 'Again, I recommend an arthroscopic acromioplasty and a good look at the rotator cuff. If indeed we find an occult tear that needs repair I told you that we will probably do a mini open repair at that time. We talked about the post operative course, needing physical therapy for two-three months; that it would probably be three months before you could do full activity including overhead activities and heavy lifting. . . .' According to the doctor, 'I went over the risks and goals including infection, loss of motion, nerve and vessel damage, etc. . . .' The above has been credited and adopted as fact.

This adjudicator also adopts as fact Dr. Tucker's opinion that the proposed surgery is 'appropriate medical care . . . that has a greater than 92% chance of a very good to excellent result with cessation of disability after a three-month recovery. This refusal to avail himself of appropriate medical care is causing his ongoing disability.'

CONCLUSIONS OF LAW

2. The employer . . . has met the burden of proof to demonstrate relief on its forfeiture petition. . . . . . . .

5. Of course, this adjudicator denied supersedeas, and supersedeas recovery is not available in this context. . . .

Thus, there is no remedy for the employer in the present case unless there is a future credit awarded during the ...


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