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Upper Darby Township v. Workers' Compensation Appeal Board (Nicastro

March 17, 2011

UPPER DARBY TOWNSHIP, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (NICASTRO), RESPONDENT



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

ORDER

AND NOW, this 21st day of June, 2011, the opinion in the above matter shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Upper Darby Township, : Petitioner : : v. : Workers' Compensation Appeal : Board (Nicastro), : Respondent

No. 1285 C.D. 2010

Submitted: October 8, 2010

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION BY JUDGE LEAVITT

Upper Darby Township (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that affirmed the Workers' Compensation Judge's (WCJ) decision reinstating the total disability benefits of Mark Nicastro (Claimant). In doing so, the Board concluded that Claimant proved, through medical evidence, that his work-related injury once again caused him to experience a loss of earning power. Because we conclude that Claimant's evidence was insufficient to meet his burden of proof for a reinstatement, we now reverse.

Claimant was employed as a laborer in Employer's sanitation department. Claimant walked behind a garbage truck and lifted garbage cans, emptying the contents into the truck. Claimant lifted approximately two hundred garbage cans per shift, each weighing, on average, forty pounds or more. On April 23, 2002, Claimant injured his low back while lifting a garbage can. Employer issued a Notice of Temporary Compensation Payable (NTCP) accepting liability for a low back strain and paying total disability benefits. The NTCP subsequently converted to a Notice of Compensation Payable. Claimant received treatment for his back injury from Employer's panel physician, Dr. John Whalen. On March 22, 2004, Claimant returned to his regular job with no restrictions, and Employer suspended Claimant's disability payments by issuing a Notification of Suspension.

On June 8, 2004, Claimant again hurt his low back while lifting a garbage can. Claimant filed a claim petition seeking benefits for this new injury. Litigation ensued before a WCJ, and the parties ultimately resolved the matter by entering into a "Binding Stipulation of Fact to Resolve the Issues in Dispute Between the Parties." Reproduced Record at 274a-276a (R.R. ___). The parties agreed that Claimant had sustained a work-related back injury that resulted in a limited period of disability from June 8, 2004, through October 7, 2004. They agreed that Claimant returned to his regular job without restrictions on October 8, 2004. The parties also agreed that any time Claimant missed from work after October 8, 2004, was not attributable to his work injury and that Claimant ultimately left his job with Employer in December 2004 because of "injuries unrelated to his back." R.R. 275a.*fn1 The WCJ issued a decision on May 31, 2006, adopting the stipulation as his own findings of fact and conclusions of law, and awarding Claimant total disability benefits for the closed period from June 8, 2004, through October 7, 2004, followed by a suspension of indemnity benefits.

In January 2008, Claimant filed a petition seeking a reinstatement of total disability benefits, alleging that his condition had worsened and his work- related injury had once again caused him to suffer a loss of earning power as of January 24, 2008. Employer filed an answer denying Claimant's allegations. In the course of the litigation, it became apparent that Claimant actually sought a reinstatement of benefits as of December 5, 2004, when he stopped working for Employer.

At the hearing before the WCJ, Claimant testified in support of his petition. He described injuring his back at work in April 2002 and again in June 2004. Claimant acknowledged that after each injury, he returned to his regular job without restrictions. With regard to the second injury, he stated that he returned to work on October 8, 2004, and was able to do the job, albeit with some pain. Claimant worked until December 5, 2004, when Employer terminated him for taking too many sick days. According to Claimant, some of the sick days were attributable to his back pain, but he did not tell Employer why he was taking the sick days. After leaving work, Claimant continued to treat with Dr. Whalen until May 2006. He then began treating with Priya Swamy, M.D., in November 2006. Claimant has not had any further back injuries, and he acknowledged that no specific incident prompted him to seek a reinstatement.

Claimant testified that he has not worked anywhere since December 2004. Claimant stated that he would "love to try" working, but Dr. Swamy will not permit him to work. Claimant also stated that since December 2004, he has been ...


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