The opinion of the court was delivered by: Judge McGINLEY
Submitted: October 30, 2009
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Carolyn Ashman (Claimant) petitions for review from the order of the Workers' Compensation Appeal Board (Board) that affirmed the order of the Workers' Compensation Judge (WCJ), Decision of November 29, 2007, that concluded Claimant sustained an injury to her back while in the course of her employment, awarded total disability benefits beginning June 26, 2006, and modified the benefits to a partial rate as of July 5, 2006, after finding Help Mates, Inc. (Employer) made light duty work available.
Claimant was employed by Employer as a Home Health Aide. Claimant petitioned for workers' compensation benefits on July 26, 2006. Claimant alleged she sustained a lumbar sprain with radiculitis on June 21, 2006, while in the course and scope of her employment. Claimant requested total disability benefits from June 26, 2006, through July 5, 2006, and ongoing partial disability benefits from July 6, 2006, through to the present and ongoing. Claimant also sought the payment of medical bills, litigation costs and attorney's fees. On July 27, 2006, Claimant also filed a Penalty Petition and alleged that Employer failed to properly investigate her claim under the provisions of the Workers' Compensation Act*fn1 . Claimant also requested attorney's fees for unreasonable contest.
Claimant testified before the WCJ that on June 26, 2006, she notified her supervisor, Pamela Wise (Ms. Wise), that she sustained an injury in the course of her employment on June 21, 2006. Notes of Testimony (N.T.), August 30, 2006, at 9; Reproduced Record (R.R.) at 106a. Claimant then began treatment with the Employer's panel physician, who released Claimant to return to sedentary duty as of July 5, 2006. N.T., at 16; R.R. at 108a.
In the proceedings before the WCJ, Claimant presented the deposition testimony of two treating physicians, Christopher McClellan, D.O. (Dr. McClellan), and James Burke, M.D. (Dr. Burke). Dr. McClellan, a general orthopedic surgeon, is licensed to practice medicine in the Commonwealth of Pennsylvania. At the time of his deposition, Dr. McClellan was not yet Board Certified in any field but planned to complete his final Board examination on January 12, 2007. Dr. Burke practices general neurosurgery and is licensed to practice medicine in the Commonwealth of Pennsylvania. At the time of his deposition, Dr. Burke was Board eligible, but was waiting for the Board to schedule his oral Boards to be certified in neurological surgery.
Dr. McClellan testified that he first evaluated the Claimant on July 18, 2006. The Claimant's "complaints were of significant pain in her lower extremities with more pain in her low back." Deposition of Christopher S. McClellan, D.O. (Dr. McClellan Deposition), December 4, 2006, at 14; R.R. at 77a. Dr. McClellan released Claimant to return to work, restricted her to lifting no more than ten to twenty pounds, and recommended she work only a four hour shift. Dr. McClellan Deposition at 22; R.R. at 85a. When Dr. McClellan evaluated Claimant a second time on August 9, 2006, his examination revealed no change and he did not change his light-duty restrictions. Dr. McClellan Deposition at 22; R.R. 85a.
Dr. Burke evaluated Claimant on October 30, 2006, and December 5, 2006. Given the Claimant's level of discomfort, the Claimant was placed off work prior to her return on December 5. Deposition of James Paul Burke, M.D. (Dr. Burke Deposition), March 29, 2007, at 16; R.R. at 159a. Dr. Burke opined that the Claimant was able to perform the light duty work made available to her by the Employer. Dr. Burke Deposition at 21; R.R. at 164a.
Ms. Wise testified at a hearing on December 13, 2006. Claimant reported the June 21, 2006, work injury to her and completed an accident report. Ms. Wise directed Claimant to treat with Dr. Jason Rowles (Dr. Rowles), a panel physician. Notes of Testimony, December 13, 2006, (N.T. 12/13/06) at 11; R.R. at 106a. Dr. Rowles completed a "Medical Injury Report Form" and authorized Claimant to return to work, "five days later" with "sedentary only restrictions." Medical Injury Report Form at 1; R.R. at 4a. As a result of receiving this report, Employer made available sedentary duty basic office work that Claimant began on July 6, 2006, at a rate of $6.00 per hour. N.T. 12/13/06 at 11; R.R. at 106a. Ms. Wise recalled that on two occasions when Claimant was asked to do filing she experienced pain. Employer's Human Resource Department advised Ms. Wise to send Claimant home on those occasions when she was in pain. N.T. 12/13/06 at 35; R.R. at 130a.
Subsequently, Dr. Rowles released Claimant to perform duties in addition to sedentary work in July and August, 2006. N.T. 12/13/06 at 13; R.R. at 108a. Ms. Wise testified that Claimant was restricted from lifting more than twenty pounds and indicated that Employer was able to accommodate that restriction. N.T. 12/13/06 at 13; R.R. at 108a. As of August 22, 2006, Claimant stopped performing the light duty work because Claimant provided a note from her primary care physician that recommended she be taken off work.*fn2 Note from Shannon Fegan, August 22, 2006, at 1; R.R. at 123a.
Employer also presented the deposition testimony of Vincent F. Morgan, M.D. (Dr. Morgan), who evaluated Claimant on October 24, 2006. Dr. Morgan is licensed to practice medicine in the Commonwealth of Pennsylvania and is Board Certified in Physical Medicine and Rehabilitation. Deposition of Vincent F. Morgan, M.D. (Dr. Morgan Deposition), June 4, 2007, at 7; R.R. at 196a. Dr. Morgan diagnosed Claimant with a lumbar strain with left lower extremity radiculitis without evidence of radiculopathy. Dr. Morgan Deposition at 20; R.R. at 209a. Dr. Morgan explained that, in his opinion, it was unusual for an individual who has had back surgery to delay treatment of an acute back strain for four days. Dr. Morgan Deposition at 21; R.R. at 210a. Accordingly, Dr. Morgan was unable to relate his diagnosis to Claimant's June 21, 2006, work incident. Dr. Morgan Deposition at 21; R.R. at 210a. Dr. Morgan opined that Claimant was capable of performing light duty work that involved lifting less than twenty pounds. Dr. Morgan Deposition at 24; R.R. at 213a.
By decision and Order circulated on November 29, 2007, the WCJ granted the Claim Petition but dismissed the Penalty Petition. The WCJ concluded that Claimant sustained a lumbar sprain with radiculitis while in the course of her employment on June 21, 2006, and awarded total disability benefits beginning June 26, 2006. The WCJ modified the benefits to a partial rate as of July 5, 2006, and concluded that Employer made light duty work available to Claimant. The WCJ made the following relevant findings of fact:
44. I accept the Claimant's testimony relating her symptoms to the June 21, 2006 incident, but the testimony of Claimant regarding the severity of her subjective complaints is not credible. Based on the record as a whole, the Claimant's assertion that she could not assist clients who are ambulatory appears to be an afterthought and furthermore is ...