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Lang v. Workers' Compensation Appeal Board6/6/2002
Joyceanne Lang (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 Monongahela Valley Hospital (Employer). We now affirm in part and reverse and remand in part.
Employer employed Claimant as an emergency room nurse. Claimant originally sustained an injury to her back on January 21, 1976, as she was pulling a patient's wheelchair which was stuck in the doorway of an elevator. A subsequent myelogram revealed lumbar disc herniation at the L4-L5 level of Claimant's spine. Pursuant to a notice of compensation payable issued by Employer on April 16, 1976, Claimant received total disability benefits. Specifically, Claimant received total disability benefits in the amount of $140.04 per week, based upon an average weekly wage of $210.06.
At some point in 1976 or 1977, Claimant underwent a lumbar laminectomy. However, the surgery was unsuccessful and complicated by severe bleeding and shock. Claimant later developed chronic low back pain and right leg pain, which pain progressively worsened over time. On February 1, 1999, Claimant attended an independent medical examination (IME) conducted by Dr. Anthony Ricci. Dr. Ricci obtained a history of the work injury from Claimant and performed a physical examination. Dr. Ricci also reviewed Claimant's previous medical records. Following examination, Dr. Ricci opined that Claimant was capable of performing full-time work in a sedentary position.
Claimant thereafter met with Barbara Graham, a senior vocational and rehabilitation specialist with Novaeon, Inc., on March 15, 1999. Ms. Graham performed a vocational assessment at that time in order to determine Claimant's potential to return to work. Ms. Graham then referred the case to Michael Cunning at Vocational Rehabilitation Center (VRC). Mr. Cunning located a production assistant position at Mon Valley Rehabilitation Center, which was within Claimant's restrictions. Ms. Graham then visited the potential job site, reviewed the available position and prepared a detailed job analysis. Dr. Ricci then reviewed the job analysis and approved the production assistant position as within Claimant's physical capabilities.
Ms. Graham advised Claimant that the position was available as of June 28, 1999. Claimant did, in fact, report for work on this date. Claimant also worked on June 29, July 1, July 6 and July 7. However, on four of these five days, Claimant remained at work for only thirty minutes before leaving due to complaints of back pain. With respect to the four working days in between, Claimant called off work on three of these days and missed another day due to an appointment with her attorney. Finally, on July 12, 1999, Claimant called Mr. Cunning and informed him that she could not continue working, as the position was too physically demanding.
On July 21, 1999, Employer filed a petition to suspend/modify Claimant's compensation benefits, alleging that Claimant was released for modified work and suitable work had been made available to her, but that she failed to make a good faith effort to perform the position. Claimant filed an answer denying that she was able to return to light-duty work and averring that she made a good faith attempt to return to the offered position but was unable to continue working due to residuals from her original work injury. The case was assigned to the WCJ and proceeded with hearings.
At these hearings, in support of its petition, Employer presented the February 1, 1999, IME report and deposition testimony of Dr. Ricci. In the former, Dr. Ricci indicated that there
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