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Richard Miller v. Workers' Compensation Appeal Board

October 11, 2011

RICHARD MILLER, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD : (PEOPLEASE CORP., ARCH INSURANCE CO. : AND GALLAGHER BASSETT SERVICES), : RESPONDENTS :



The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

: Submitted: June 17, 2011

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

OPINION BY SENIOR JUDGE FRIEDMAN

Richard Miller (Claimant) petitions for review of a Workers' Compensation Appeal Board (WCAB) order, dated January 25, 2011, to the extent that it affirms an order of a workers' compensation judge (WCJ) terminating his benefits. We reverse and remand.

Claimant suffered a work-related injury while driving a tractor trailer on December 29, 2007.*fn1 Peoplease Corporation (Employer) accepted liability by way of a notice of compensation payable describing the work injury as a cervical disc protrusion with radiculopathy. On June 22, 2009, Employer filed a petition for the

modification, suspension and/or termination of Claimant's benefits. The WCJ held several hearings on the matters.

In support of its combined petition, Employer presented the deposition testimony of Claimant's treating orthopedic surgeon, Charles Wagener, M.D., among others. Dr. Wagener testified that he performed surgery on January 24, 2008, decompressing Miller's spinal cord and nerve roots at the C5-C6 and the C6-C7 vertebrae.*fn2 Dr. Wagener opined that the surgery was successful because Claimant's pain was "largely resolved" and because a subsequent MRI showed no pressure on the spinal cord. (WCJ's Findings of Fact, No. 3.) Claimant later developed a frozen shoulder, but Dr. Wagener released Claimant to unrestricted work on June 5, 2009,*fn3 because Claimant had fully recovered from his work injury.

Claimant, however, testified on January 4, 2010, that he still has shaking in his right hand and right arm. Claimant offered his personal opinion that he has chronic nerve damage related to the work injury. The WCJ found:

14. Although [Claimant's] testimony is generally credible, to the extent he relates his current disability to the work injury his testimony is unpersuasive in consideration of the uncontradicted testimony of his own treating surgeon and [Claimant's] failure to produce any expert medical evidence in support of his own opinions.

The WCJ also concluded:

2. [Employer] has proven through substantial, competent and expert evidence, entirely uncontradicted, that [Claimant] has completely recovered from the work injury of December 29, 2007 and therefore the Petition for

Termination shall be granted.

(WCJ's Op., 5/25/10, Findings of Fact, No. 14; Conclusions of Law, No. 2.) Thus, the WCJ terminated Claimant's benefits and dismissed Employer's petitions for suspension and modification as moot. On appeal, the WCAB affirmed.*fn4 Claimant's petition for review to this court followed.*fn5

Claimant argues that Employer did not prove its entitlement to a termination of benefits because Dr. Wagener's testimony was equivocal on the issue of whether Claimant had fully recovered from his work injury. After a ...


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