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Brian Soja v. Workers‟ Compensation Appeal Board (Hillis-Carnes Engineering

November 7, 2011

BRIAN SOJA, PETITIONER
v.
WORKERS‟ COMPENSATION APPEAL BOARD (HILLIS-CARNES ENGINEERING ASSOCIATES), RESPONDENT



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

Submitted: June 24, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY JUDGE LEAVITT

Brian Soja (Claimant) petitions for review of an adjudication of the Workers‟ Compensation Appeal Board (Board) reinstating his disability compensation for a limited period of time and suspending it thereafter. In doing so, the Board affirmed the decision of the Workers‟ Compensation Judge (WCJ) that Claimant failed to prove that his disability continued through the reinstatement proceeding. Claimant argues that he did not have to show that his disability was continuing and, therefore, it is irrelevant that the WCJ found his testimony of a continuing disability at the hearing untruthful. For the reasons that follow, we affirm.

In 2005, while working as a manual laborer for Hillis-Carnes Engineering Associates (Employer), Claimant sustained an injury to his lower back when he pulled a heavy piece of equipment from a ditch. The work injury aggravated Claimant‟s underlying degenerative disc disease in his lower back. Employer accepted this injury under an agreement of compensation payable, and Claimant returned to work soon thereafter.

In January 2006, while working for a new employer as a truck driver, Claimant sneezed, thereby exacerbating his 2005 back injury. Employer accepted liability for an aggravation of Claimant‟s underlying disc disease, a protrusion at the L3/4 level, and an annular tear of a disc at the L4/5 level. Employer paid Claimant total disability benefits for one month, with benefits suspended thereafter.

In April 2006, Claimant went to work for yet another employer, Liberty Linehaul West, as a truck driver. In October 2006, while bending over to tie his shoe at home, he experienced intense pain to his back that radiated down his left leg and into his foot. Claimant filed a reinstatement petition, seeking temporary total disability as of November 1, 2006. Employer moved to have Liberty Linehaul West joined as a defendant. Hearings before the WCJ began in February 2007 and concluded in April 2008.

At the first hearing in February 2007, Claimant testified that his back and leg pain were on-going and interfered with sleep, even when he takes prescription pain medication. He further testified that he had been prescribed a cane; was undergoing cortisone treatments to his back; and that surgery was under consideration.

In November 2007, Claimant again testified about his ongoing disability. He stated that he has difficulty climbing the stairs, suffers increased pain and needs to use the cane constantly.

In April 2008, Claimant testified for the third and final time. He reported that his legs were constantly numb and that the pain was increasing. He could no longer drive safely because, at times, he was unable to move his legs. Claimant explained that he needs $49,000 to build a bathroom and bedroom on the first floor of his home to accommodate his disability.*fn1 He stated that on occasion he urinates in the kitchen sink, rather than attempt the stairs, which he can do only by crawling. He stated that he needs a cane "pretty much constantly." Reproduced Record at 202a (R.R. __). He acknowledged that he owns a pick-up truck, but stated that he drives it only when necessary because he is a single parent. When asked about hobbies, he explained that he likes to fish but can do so only on rare occasions. Claimant presented the testimony of three friends, who confirmed that Claimant has difficulty with standing or walking.

In further support of his reinstatement petition, Claimant presented the deposition testimony of Matthew Haley, D.O., taken September 19, 2007. Dr. Haley is board certified in family practice and began treating Claimant on July 19, 2005, for his work injury. Dr. Haley diagnosed Claimant as suffering bilateral lumbar spasms caused by the work injury. An MRI showed lumbar disc disease and degenerative changes, which were exacerbated by the July 2005 work injury. Following treatment, Claimant returned to work with restrictions on heavy lifting. Dr. Haley advised Claimant to look for employment that did not involve lifting heavy equipment.

In August 2006, Claimant came to Dr. Haley‟s office in a wheelchair, complaining of difficulty moving. Claimant did not report a new injury, so Dr. Haley attributed the complaints of pain to the 2005 work injury. A second MRI indicated increasing degenerative disc disease and a new disc herniation. As of October 18, 2006, Dr. Haley concluded that Claimant could not return to work. Dr. Haley observed that Claimant is never free of pain.

Claimant also presented the January 29, 2008, deposition testimony of Patrick Fricchione, M.D., who did an IME of Claimant on August 28, 2007, at the request of Liberty Linehaul West, Claimant‟s employer in October 2006.*fn2 Dr. Fricchione is board certified in the treatment of emergency medicine. At the time of Dr. Fricchione‟s IME, Claimant reported lower back pain that radiated into both his hips and legs; occasional leg numbness; and difficulty walking. Dr. Fricchione opined that Claimant suffered multilevel lumbar degenerative disc disease and that Claimant‟s ongoing symptoms of pain were caused by the 2005 work injury. He believed Claimant had a "temporary total disability," that lasted "at least up until the time [of the August 2007 IME]." R.R. 340a, 343a.

In response, Employer presented the deposition testimony of Scott K. Epstein, M.D., who is board certified in physical medicine and rehabilitation. He did an IME of Claimant on March 8, 2007, at which Claimant reported back pain that radiated to his legs and a loss of feeling in his left knee. Claimant also reported that his pain was constant; flared with any movement, such as a cough; flared when standing up from a bent position; and increased when he reclined in any position other than a fetal position. Claimant reported that he needs a cane to walk. Dr. Epstein also reviewed Claimant‟s medical records. Dr. Epstein concluded that Claimant‟s 2005 injury was a lumber strain and annular tear at the L4/5 level. He also opined that the injury at the L2/3 and L3/4 levels shown in October 2006 tests was not related in any way to ...


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