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Petitioner v. Workers' Compensation Appeal

September 17, 2012

PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (CARING COMPANIONS, INC. AND UNINSURED EMPLOYERS GUARANTY FUND), RESPONDENTS



The opinion of the court was delivered by: Anne E. Covey, Judge

Judy Smith,

Submitted: August 10, 2012

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE COVEY

Judy Smith (Claimant) petitions this Court for review of the Workers' Compensation Appeal Board's (Board) February 24, 2012 order affirming the Workers' Compensation Judge's (WCJ) decision granting the claim petitions filed against Caring Companions, Inc. (Employer) and Uninsured Employers Guaranty Fund (UEGF), and modifying Claimant's benefits as of April 16, 2009. The sole issue before this Court is whether the WCJ erred when it modified Claimant's benefits. We affirm.

Claimant began working for Employer in 2006 as a home health aide. On October 29, 2008, while working for Employer at a client's home, Claimant fell while attempting to prevent the client from falling. Immediately after the accident, Claimant experienced burning in her back. She reported the incident to Employer and attempted to continue working. Employer told Claimant that it would report the incident and she should wait to be contacted. Claimant was seen in the Pottsville Hospital emergency room on that same evening. Thereafter, the hospital contacted Claimant for her workers' compensation claim numbers. As a result, Claimant again contacted Employer to follow up. On the date of the accident, Employer did not have workers' compensation coverage.

On October 31, 2008, Claimant was examined by Joseph E. Albert, D.O. (Dr. Albert). Claimant's chief complaints were neck and back pain. She also complained of having head cold symptoms for several days, and dizziness upon turning her head since the accident. In an October 31, 2008 Injury Care Report (Report), Dr. Albert noted that Claimant was experiencing "[s]inusitis with secondary labyrinthitis -- non work related" and "[c]ervical thoracic sprain strain, rule out disc protrusion." Reproduced Record (R.R.) at 191a. The Report also stated, "I suspect that most of her headache and dizziness are from her sinus infection. . . . She should remain off work until she is cleared by her family physician regarding the sinus infection, then make a follow[-]up appointment with her worker's [sic] compensation panel provider." R.R. at 191a.

On or about November 3, 2008, Claimant was examined by her family physician, Anita Kolzlowski, M.D. (Dr. Kolzlowski). Dr. Kolzlowski provided Claimant with a note which was given to Employer, excusing her from work for a two-week period ending November 17, 2008. It is unknown if the note removed Claimant from work due to her sinusitis, or the cervical thoracic sprain strain.

Claimant's average weekly wage was $400.43 per week (based upon a 40 hour week at $9.50 per hour) with a resulting potential compensation rate for total disability of $360.38 per week. Beginning on or about October 29, 2008 and continuing through August 31, 2009, Employer sent Claimant bi-weekly checks based upon her gross wages of approximately $361.00 per week, representing approximately thirty-eight hours per week at $9.50 per hour.*fn1 Although the amount paid to Claimant approximated her potential compensation rate, Employer deducted taxes from the gross wages thus resulting in payment of an amount less than that Claimant would have received had she been paid total tax-free disability benefits under workers' compensation.

On December 5, 2008, Claimant filed a claim petition seeking workers' compensation benefits from Employer alleging the occurrence of a work-related injury on October 29, 2008. The claim petition sought ongoing total disability benefits as well as payment of medical bills, and sought counsel fees pursuant to the Workers' Compensation Act (Act).*fn2 Claimant also filed a penalty petition alleging that Employer failed to accept or deny the claim within 21 days. On January 26, 2009, Claimant filed a claim petition seeking workers' compensation benefits from UEGF.

On or about December 14, 2008, Claimant received a job offer letter for a light-duty position in Employer's Reading, Pennsylvania office. Although the letter outlined job duties and stated that the position would pay the same rate of $9.50 per hour, the letter did not indicate the number of hours per week. Claimant did not return to work. On or about January 11, 2009, Claimant received a Notice of Ability to Return to Work form (Notice), dated January 8, 2009, which stated:

You have provided no medical evidence that you are disabled as the result of your work injury on October 29, 2008. The attached [Report] indicates that you should remain off work until you are cleared to return to work by your family physician for a non-work-related sinus infection. See also offer of employment sent to you and your attorney on December 12, 2008.

R.R. at 189a.

On February 2, 2009, at the suggestion of Claimant's counsel, Claimant was examined by Robert W. Mauthe, M.D. (Dr. Mauthe).*fn3 Claimant complained to Dr. Mauthe of pain from head to toe. She complained of numbness in her head, pain in her upper back in the thoracic area and pain in her buttocks. Dr. Mauthe determined that the pain in her upper back was pre-existing, and unrelated to the 2008 work accident. Further, Dr. Mauthe determined that Claimant had "absolutely no neurologic findings." R.R. at 212a. Dr. Mauthe concluded that her upper and lower body pain was consistent with a fibromyalgia-type syndrome. Further, it appeared to Dr. Mauthe "that [Claimant] did suffer a sprain/strain of the cervical, thoracic, and lumbar area, superimposed upon ...

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