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Iannone v. Workers' Compensation Appeal Board10/31/2002
Domenico Iannone (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board), affirming an order of the Workers' Compensation Judge (WCJ), granting the termination petition filed on behalf of Super Fresh, Inc. (Employer). We affirm.
Employer employed Claimant as a meat cutter. In the course and scope of his employment on December 22, 1990, Claimant sustained an injury to his right shoulder. Claimant received total disability benefits pursuant to a notice of compensation payable issued by Employer. Claimant was later diagnosed with a torn rotator cuff in his right shoulder. In July of 2001, Claimant underwent surgery to repair this injury. Following surgery, in December of 1991, Claimant returned to work. Claimant worked until September of 1992, at which time he could no longer continue because of recurring pain in his shoulder. Claimant's benefits were thereafter reinstated.
On October 19, 1998, Dr. Michael Sidor, a Board-certified orthopedic surgeon, conducted an examination of Claimant on behalf of Employer. During the examination, Claimant complained of mild weakness and pain when engaging in activities at shoulder level or above. Dr. Sidor did note some findings with respect to decreased strength and movement in Claimant's right shoulder. After reviewing x-rays, Dr. Sidor also noted some age-related arthritis in that shoulder. Based upon his examination of Claimant, Dr. Sidor opined that Claimant was capable of returning to work in some capacity, but with restrictions.
Thereafter, Employer obtained videotaped surveillance of Claimant. The surveillance tape showed Claimant picking up a tarp, lifting it above shoulder level rapidly and without pain, using a leaf blower on his right arm, fully extending his right arm over his head to shake the branches of a tree, raking leaves, dragging a tarp full of leaves, watering the lawn and emptying the trash. Employer forwarded the surveillance tape to Dr. Sidor. Upon reviewing the tape, Dr. Sidor noted the inconsistencies between Claimant's exam and complaints of pain as compared to his actions on the tape. Hence, Dr. Sidor rendered a new opinion that Claimant was capable of performing his pre-injury job without restrictions and that he had fully recovered from his original work injury.
Employer then filed a petition to terminate Claimant's compensation benefits based upon the opinion of Dr. Sidor. Claimant filed an answer denying that he was fully recovered and, instead, averring that he remained totally and permanently disabled. The case was assigned to the WCJ and proceeded with hearings. At these hearings, in support of its termination petition, Employer presented the deposition testimony of Dr. Sidor. Dr. Sidor merely reiterated the findings regarding his examination of Claimant, his original opinion regarding Claimant's capabilities and his subsequent opinion following review of the surveillance tape, all of which is described above.
Employer also presented the deposition testimony of Francis Simone, a surveillance coordinator/supervisor for International Claims Specialists (ICS). In November of 1998, Mr. Simone was still working in the field and was assigned to Claimant's case. Mr. Simone indicated that he undertook surveillance of Claimant on November 16, 1998, and thereafter prepared a report. Regarding the actual surveillance, Mr. Simone indicated that he observed Claimant using his full body, including his right arm and shoulder, to drag piles of leaves on a tarp across the lawn, dumping the leaves, using a gas blower on his right arm, raking leaves, extending both arms above his head to vigorously shake tree branches, pulling a hose to water the leaves
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