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Shollenberger v. Workers' Compensation Appeal Board11/8/2002
Harry Shollenberger (Claimant) petitions for review from an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of the Workers' Compensation Judge's (WCJ) denial of Claimant's claim petition and denial of Horsehead Resource Development Corporation Inc.'s (Employer) and CIGNA (Insurer) joinder petition.
On March 22, 1999, Claimant petitioned for benefits and alleged that he sustained the following work-related injuries:
Climbing down a ladder from a payload cab, employee [Claimant] slipped on last step and twisted back and hit the tire of the loader, felt pain in lower back. Pain slowly got worse over time and employee [Claimant] continued to work despite the pain. On or about October 1996 MRI indicated the HNP of the L4-5 disc, employee [Claimant] did not miss work. In early October 1997, employee [Claimant] was working for the same employer at same location, reached across table to grab battery which weighed 30-40 pounds reinjured back. Claim Petition, March 22, 1999, at 1; R.R. at 3.
Employer denied all allegations.
Claimant testified that his job duties as plant foreman included
"production, maintenance; not only the paperwork and breakdowns . . . I ran a pay loader did . . . most of the welding." N.T. 11/16/99 at 8; R.R. at 51.
Claimant stated after his September 11, 1996, injury "I worked . . . hen it [pain] got really bad, I'd just tell him [immediate supervisor] and there was no problem . . . I was salaried . . . I came out as much as I could, and when I couldn't take it, I'd go home . . . ." N.T 11/16/99 at 11-12; R.R. at 54-55. After two months, "I was back steady that I wasn't missing any work." N.T. 11/16/99 at 14; R.R. at 57. Claimant stated that after his second work-related injury on September 26, 1997, he was " n and off, maybe a week; maybe a half a day here" and that he "never missed a paycheck from the time I started until the time they laid me off." N.T. 11/16/99 at 18; R.R. at 61. Finally, Claimant testified that on January 7, 1998, he was laid off and that " hey just replaced me with somebody from down below." N.T. 11/16/99 at 22; R.R. at 65.
Claimant also presented the medical deposition of Richard Wilson, M.D. (Dr. Wilson), board-certified in internal medicine. Dr. Wilson examined Claimant on October 4, 1996, and found "radiculopathy or encroachment on the sciatic nerve down the left lower extremity." Deposition of Dr. Richard Wilson (Dr. Wilson Deposition), February 16, 2000, at 7; R.R. at 183. The MRI revealed "a moderate sized herniated disc at the left paracentral inferior direction at the L4-L5 level with narrowing at the left neural foramina at this level and there's also diffuse disc bulging at L2-L3 and moderate disc degeneration at L1-L2 and L5-S1 . . . ." Dr. Wilson Deposition at 9; R.R. at 185. Dr. Wilson treated Claimant with Daypro, Cytotec and Tylenol 3. Claimant again saw Dr. Wilson after his second injury and Dr. Wilson ordered another MRI. The second MRI report showed "improvement . . . the large L4-L5 protrusion with extension clearly has markedly regressed and the diffuse bulge of the disc at L4-L5 was still there but there was no protrusion into . . . the foramina and there was no sign of nerve compression or spinal stenosis in the area." Dr. Wilson Deposition at 14; R.R. at 190. Dr. Wilson continued the pain medication and recommended some exercise routines for his back. Claimant was "asymptomatic" during his November 21, 1997, office visit.
However, at Claimant's February 5, 1999, visit he had "pain in the left back, left hip area from his herniations of the disc and down the . . . the left thigh . . . ." Dr. Wilson Depo
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