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Brown v. Workers' Compensation Appeal Board11/19/2002
Lisa Brown (Claimant) appeals part of the order of the Workers' Compensation Appeal Board (Board) affirming the Workers' Compensation Judge's (WCJ) grant of OMEGA Professional Services' (Employer) petition to suspend Claimant's benefits, and remanding other issues. We must quash Claimant's appeal because the Board's order does not dispose of all issues and, as such, is not appealable.
In 1997, Claimant suffered work related injuries in the nature of right shoulder, neck and arm pain, and anxiety. Pursuant to a Notice of Compensation Payable (NCP), Claimant received benefits.
Thereafter, Employer filed a suspension petition alleging that, as of November 17, 1997, Claimant sufficiently recovered from her injuries, was able to return to modified duty employment, and was offered this work. Claimant filed an answer denying these allegations. In 1998, Claimant filed a petition for review of utilization review benefits.
In support of its suspension petition, Employer presented testimony by an orthopedic surgeon, David K. Saland, M.D. (Employer's Orthopedist). Based on a review of Claimant's medical records, history and examination, Employer's Orthopedist opined that Claimant sufficiently recovered from her physical injuries. Because his recent examination revealed no orthopedic abnormalities, he opined that Claimant was physically able to return to modified duty work. The WCJ accepted this testimony as credible. Finding of Fact (F.F.) No. 16.
In addition, Employer submitted a medical report prepared by Alex I. Dever, M.D. (Employer's Psychiatrist), who is board certified in neurology and psychiatry. Employer's Psychiatrist examined Claimant and reviewed her medical records. Employer's Psychiatrist opined that Claimant suffers from major depression of mild to moderate severity, directly related to her work injury. He opined that, with appropriate treatment, Claimant's mental condition would resolve. After reviewing the description of modified employment, Employer's Psychiatrist opined that Claimant could return to the modified work. The WCJ accepted this testimony as credible. F.F. No. 16.
Employer also presented deposition testimony by its representative, Kathleen Bennett (Employer's Representative). She testified that Employer offered Claimant a position as a warehouse manager in November 1997 and again in February 1998. She further explained that if Claimant could not perform the required tasks, as modified, the position would be tailored to Claimant's needs. The WCJ found Employer's Representative's testimony credible and accepted it as fact. F.F. No. 17.
In opposition to Employer's petition Claimant testified that, despite an improvement in her condition, she was unable to return to work. Claimant acknowledged receiving two letters describing offers of modified duty employment, but stated that she could not perform the required physical tasks.
The WCJ found that Claimant was able to return to modified duty employment on November 17, 1997. F.F. No. 18. Significantly, the WCJ further concluded that Claimant did not make a good faith effort to return to work. Id. Accordingly, the WCJ granted Employer's suspension petition effective November 17, 1997. The WCJ also dismissed Claimant's petition for review of utilization review benefits on the grounds that Claimant failed to present evidence. F.F. No. 21.
Claimant appealed, and the Board affirmed the grant of the suspension petition, but modified the effective date. More specifically, the Board determined Employer's November 1997 job offer was insufficient because it did not describe the modified job duties. However, the Board concluded the February 1998 noti
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