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Duferco Farrell Corp. v. Workers' Compensation Appeal Board

January 14, 2010

DUFERCO FARRELL CORPORATION AND AMERICAN ZURICH INSURANCE COMPANY, PETITIONERS
v.
WORKERS' COMPENSATION APPEAL BOARD (ZUHOSKY), RESPONDENT



The opinion of the court was delivered by: Senior Judge QUIGLEY*fn1

Submitted: October 9, 2009

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge, HONORABLE KEITH B. QUIGLEY, Senior Judge.

OPINION

Duferco Farrell Corporation (Employer) and American Zurich Insurance Company (Insurer) petition for review of the June 5, 2009, order of the Workers' Compensation Appeal Board (WCAB), which affirmed the decision of a workers' compensation judge (WCJ) to grant the reinstatement petition filed by Joseph A. Zuhosky (Claimant) and to award unreasonable contest fees. We reverse.

Claimant sustained a work-related medial meniscus tear in his left knee on March 26, 2003. As a result, Claimant received workers' compensation benefits pursuant to a Notice of Temporary Compensation Payable and, later, a Notice of Compensation Payable. Claimant's benefits were suspended as of August 1, 2005, when he returned to modified duty. However, on January 27, 2007, Claimant stopped working his modified duty job, and, on January 31, 2007, Claimant underwent total left knee replacement surgery.

On March 29, 2007, Claimant filed a reinstatement petition. Employer filed a timely answer, and hearings were held before the WCJ. In support of his petition, Claimant testified on his own behalf and presented the medical report of Lester S. Borden, M.D., who performed Claimant's knee replacement. Dr. Borden opined that Claimant's work injury had aggravated his pre-existing arthritis, which expedited the need for a total knee replacement. Dr. Borden released Claimant to return to work on September 10, 2007, with restrictions for six months.*fn2

Employer presented no evidence at the hearings. However, at the May 1, 2007, hearing, Employer asked Claimant on cross-examination about his plans to retire.

Q: Had you also had discussions with your Employer about the fact that you were going to retire?

A: I mentioned to them I would like to retire.

Q: You were going to have your knee operated on, and you were going to retire? That was your intention?

A: My intention was to have my knee operated on first.

Q: Then, retire?

A: Eventually, yes.

Q: You're how old?

A: I'm 67.

Q: You do collect Social Security; correct?

A: Yes..

Q: Have you made any application for retirement? ..

A: No.

Q: Are you planning on doing that?

A: Eventually, I would like to ...


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