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Donald Argyle v. Workers' Compensation Appeal Board (John J. Kane Mckeesport Regional

September 2, 2011

DONALD ARGYLE, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (JOHN J. KANE MCKEESPORT REGIONAL CENTER AND UPMC WORK PARTNERS CLAIMS MANAGEMENT), RESPONDENTS



The opinion of the court was delivered by: P. Kevin Brobson, Judge

ORDER

AND NOW, this 10th day of November, 2011, upon consideration of the Motion to Report Unreported Opinion, the Motion is granted. It is hereby ordered that the opinion filed September 2, 2011, shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donald Argyle, : Petitioner : v. Workers' Compensation Appeal : Board (John J. Kane McKeesport : Regional Center and UPMC Work : Partners Claims Management), : Respondents :

No. 43 C.D. 2011

Submitted: May 20, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE BROBSON

FILED: September 2, 2011

Donald Argyle (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board), dated December 15, 2010, which affirmed the decision of Workers' Compensation Judge (WCJ) Linda F. Tobin. WCJ Tobin denied Claimant's petition to modify compensation benefits, finding that Claimant failed to establish that his work-related injury resolved into a specific loss under Section 306(c) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513.*fn1 For the reasons that follow, we affirm.

On March 31, 1993, Claimant sustained a work-related injury to his right wrist while employed by John J. Kane McKeesport Regional Hospital (Employer). Employer issued a notice of compensation payable on April 22, 1993, describing the work-related injury as a "Sprain Right Wrist," and Claimant began receiving temporary total disability benefits. (Reproduced Record (R.R.) at 299.) Thereafter, Claimant underwent multiple medical procedures to alleviate pain, including a fusion of his right wrist on January 12, 1995. Claimant returned to work in a light duty capacity for a period, but ceased working sometime in 1998, complaining that he was unable to perform his assigned work responsibilities.

On November 2, 1998, Claimant filed a petition to reinstate compensation benefits, alleging that his work-related injury resolved into a specific loss of his right forearm and/or hand (hereinafter referred to as "1998 reinstatement petition"). Employer filed a responsive answer, denying the material allegations of Claimant's petition. On October 25, 1999, Employer filed a petition to suspend compensation benefits, alleging that Claimant had refused to return to light duty (hereinafter referred to as "1999 suspension petition"). Claimant filed an answer, denying that he was capable of performing Employer's offered light duty position. Claimant's 1998 reinstatement petition and Employer's 1999 suspension petition were consolidated, and WCJ David Torrey conducted a hearing. By decision issued February 18, 2000, WCJ Torrey denied both petitions. Concerning Claimant's 1998 reinstatement petition, WCJ Torrey determined that Claimant failed to establish that his work-related injury resolved into a specific loss of his right forearm and/or hand. With regard to Employer's 1999 suspension petition, WCJ Torrey determined that Employer's offered light duty position was not within Claimant's physical limitations. Claimant did not appeal WCJ Torrey's decision.*fn2

On December 10, 2008, Claimant filed a petition to modify compensation benefits alleging, as before, that his work-related injury resolved into a specific loss of his right forearm and/or hand. Employer filed an answer, denying the material allegations of Claimant's petition, and the matter was assigned to WCJ Tobin.

In support of his modification petition, Claimant presented his own deposition testimony, taken February 19, 2009, and testified at a hearing before WCJ Tobin on June 30, 2009. Claimant testified by deposition that he makes absolutely no use of his right hand, except in emergency situations, because of the pain. (R.R. at 163, 172.) Claimant described the pain he feels as a toothache, and stated that if he uses his right hand, he experiences swelling from the bottom of the wrist up to the knuckles, which persists for about a week. (R.R. at 166-67.) Claimant testified that he had not undergone any surgical intervention since he testified in support of his 1998 reinstatement petition, and that he had been treating his pain with prescription pain medication until October 17, 2008, when he attempted suicide by overdose.*fn3 (R.R. at 163-65.) Claimant further testified that since the January 12, 1995 wrist fusion, he is able to move his right wrist from side to side, but not up and down. On ...


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