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Blon v. Workers' Compensation Appeal Board6/20/2002
Helena Blon (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 suspension petition filed on behalf of Super Fresh Food Markets (Employer). We affirm.
Employer employed Claimant as a cashier. In the course and scope of her employment on March 12, 1994, Claimant sustained an injury to her neck and back. Claimant received total disability benefits pursuant to a notice of compensation payable (NCP) issued by Employer. The NCP described Claimant's injury as "CERVICAL/THORACIC STRAIN." (R.R. at 3a). Claimant and Employer thereafter executed several supplemental agreements detailing Claimant's entitlement to various periods of total and partial disability benefits. However, as of August 31, 1994, Claimant was receiving total disability benefits.
On March 1, 1996, Employer filed a petition to terminate/suspend Claimant's compensation benefits. Employer alleged that Claimant had fully recovered from her work-related injury or, in the alternative, that Claimant was offered but refused to return to light-duty work, which would gradually be increased to full duty, which work was within her limitations. Claimant filed an answer averring that she was not fully recovered and that she did not fail to follow up on any job referrals in good faith. The matter was assigned to the WCJ and proceeded with hearings. At these hearings, Employer amended its termination/suspension petition to include a petition for suspension/forfeiture of Claimant's benefits as a result of her alleged refusal to undergo reasonable medical services.
This petition for suspension/forfeiture followed the deposition of Claimant's own treating physician at the time, Dr. Donald Myers, a Board-certified neurosurgeon. In his deposition, Dr. Myers indicated that he first saw Claimant on August 7, 1996, at the request of Dr. Richard Mandell, a neurologist. Dr. Myers later suggested to Claimant that she undergo anterior cervical discectomy and fusion. However, Claimant was reluctant to submit to this surgery and sought, but was unsuccessful in obtaining, a second opinion. Nevertheless, Dr. Myers opined that Claimant was unable to return to her pre-injury job and continues to suffer pain and discomfort as a result of her original work injury.
In subsequent discussions with Claimant, Dr. Myers advised Claimant that anterior cervical discectomy and fusion would place stress on adjacent levels of her spine. Dr. Myers thereafter discussed with Claimant the possibility of a less intrusive type surgery, referred to as cervical foraminotomy, which "decompresses the nerves and leaves the basic structure intact." (R.R. at 276a). Claimant opted for this latter surgery and underwent the same on May 7, 1997, with respect to the C4-5, C5-6 and C6-7 levels of her spine. Nevertheless, Claimant experienced little, if any, benefit from the surgery. Dr. Myers indicated as much in a report dated August 5, 1997, which was later submitted into evidence before the WCJ.
Ultimately, the WCJ issued a decision and order denying Employer's termination/suspension petition. The WCJ concluded that Employer had failed to meet its burden of establishing that Claimant had fully recovered from her original work-related injury or that she failed to respond in good faith to Employer's job referral. The WCJ also concluded that Employer had failed to sustain its burden of proof on its suspension/forfeiture petition based upon Claimant's alleged failure to undergo reasonable medical treatment. However, the WCJ failed to make any specific findings of fact with regard to this petition. Employer appealed to the Board, ad
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