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Frederick Schmidt v. Workers' Compensation Appeal

December 15, 2010

FREDERICK SCHMIDT, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (IATSE LOCAL 3), RESPONDENT



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

ORDER

AND NOW, this 26th day April, 2011, it is hereby ORDERED that the above-captioned opinion filed December 15, 2010, shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frederick Schmidt, : Petitioner : v. Workers' Compensation Appeal : Board (IATSE Local 3), : Respondent :

No. 1100 C.D. 2010

Submitted: September 17, 2010

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION

BY JUDGE LEAVITT

Frederick Schmidt (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) to grant compensation for a closed period of time and, thereafter, to terminate benefits.*fn1 Claimant contends that a termination was inappropriate because he will continue to suffer residual pain from the work-related injury. We affirm the Board.

Claimant is employed as a stage hand by IATSE Local 3 (Employer).*fn2 He received assignments from Employer's office, which is considered a "hiring hall." Reproduced Record at 124a (R.R. __). On September 11, 2007, he was injured while working at the Mellon Arena in Pittsburgh. Specifically, Claimant was climbing a pole when he slipped and fell to the ground. He fell approximately eight feet, landing on concrete.

On March 21, 2008, Claimant filed a claim petition, alleging a work-related injury to his lower back. He requested partial disability from September 12, 2007, to January 18, 2008, and total disability from January 19, 2008, onward. On July 3, 2008, Claimant returned to work at his pre-injury job, with no loss of wages. Employer then requested a termination of benefits.

On August 27, 2008, the parties reached an agreement that on September 11, 2007, Claimant sustained a work-related injury, described as a L3-L4 disc herniation and lumbar strain. The agreement resolved Claimant's right to compensation through June 30, 2008. However, the parties requested that the WCJ determine whether Employer was entitled to a termination or a suspension of benefits after June 30, 2008.

At the first hearing before the WCJ, Claimant testified that when he fell, he felt pain in his back and his right side. At the emergency room, he was given various tests and then released. He returned to work several days later, but the back pain continued, radiating down his right leg. His family doctor, Vern Orlang, M.D., first prescribed steroids and pain medication and then in January, 2008, referred Claimant to Ashvin Ragoowansi, M.D., who performed surgery on Claimant on February 1, 2008. The surgery consisted of a L3-4 decompressive laminectomy, right-sided microdiscectomy, fusion utilizing autologous laminectomy bone and symphony augmented bone bank bone, pedicle screw fixation at L3 and L4 bilaterally utilizing the Expedium DePuy spine instrumentation system.

R.R. 128a. Claimant testified that his condition improved with the surgery by resolving his limp and leg pain. However, he continued to suffer back pain on occasion, which appeared to be aggravated by changes in the weather. Claimant addressed this back pain with Ibuprofen. On Dr. Ragoowansi's referral, Claimant underwent physical therapy from John Dunne, D.O., who released Claimant to return to work on July 3, 2008.

At a second hearing before the WCJ, Claimant testified that he had returned to work with Employer. However, working caused Claimant to suffer daily back pain and occasional right leg pain, which he treats with Ibuprofen. Claimant testified that he had not missed ...


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