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Cedar Haven Nursing Home v. Workers' Compensation Appeal Board6/7/2002
Cedar Haven Nursing Home (Employer) appeals from an order of the Workers' Compensation Appeal Board (Board) which affirmed a decision of a Workers' Compensation Judge (WCJ) denying Employer's petition to suspend the benefits of Elsy Rivera-Ruiz (Claimant). We affirm.
Claimant had been employed by Employer as a certified nursing assistant. On October 11, 1998, Claimant sustained a work-related injury in the nature of a back strain and began receiving workers' compensation benefits pursuant to a notice of compensation payable. By letter dated March 5, 1999, Employer informed Claimant that, based on the results of an independent medical examination, she was capable of returning to work without restrictions. Employer informed Claimant that she was expected to return to work on March 11, 1999. On March 16, 1999, Employer filed a suspension petition alleging that work was available to Claimant within her restrictions and that she had refused to return to work. Claimant filed a timely answer denying that she was able to return to work.
At a hearing before the WCJ, Employer presented the deposition of Steven E. Morgenstein, D.O., who is board-certified in physical medicine and rehabilitation. Dr. Morgenstein examined Claimant on February 17, 1999 and, based on the results of that examination, the history Claimant provided and his review of Claimant's medical records, Dr. Morgenstein diagnosed Claimant as having sustained a muscular sprain and strain in her cervicothoracic and thoracolumbar regions. Dr. Morgenstein testified that, at the time of his examination, neurologic testing was normal and that there were no objective findings to indicate any significant problems or to correlate with Claimant's subjective complaints. Dr. Morgenstein opined that Claimant was fully recovered from her work injury and that she was capable of returning to her pre-injury job.
Claimant presented the deposition testimony of Mariaelaina Sumas, M.D., a neurosurgeon. Dr. Sumas testified that she first saw Claimant in the emergency room at Hershey Medical Center. Claimant reported a nine-day history of low back pain which began after she moved an overweight patient at work. Upon examination, Dr. Sumas found that Claimant had moderate lumbosacral muscle spasm as well as tenderness with minimal palpation over her back. Dr. Sumas' initial diagnosis was lumbar strain. Dr. Sumas later changed her diagnosis to lumbar spasm and pain. Dr. Sumas subsequently ordered an MRI of Claimant's lumbar spine which showed a small disc bulge at L4-5. Dr. Sumas testified that as of June 8, 1999, the date of her last examination, Claimant had a significant amount of back pain which was increased with lifting or even with routine activities.
On March 14, 2000, the WCJ issued a decision denying Employer's suspension petition. The WCJ found that Claimant was unable to perform her pre-injury job because of significant restrictions placed on her by Dr. Sumas. Employer appealed to the Board which affirmed the decision of the WCJ. Employer now appeals to this Court.
On appeal, Employer argues that the WCJ erred in expanding the nature of Claimant's work-related injury and in concluding that Claimant was permanently disabled. Our scope of review in a workers' compensation appeal is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Russell v. Workmen's Compensation Appeal Board (Volkswagen of America), 550 A.2d 1364 (Pa. Cmwlth. 1988).
Employer first argues that the WCJ erred in expanding Claimant's work-related injury to include "an injury to her neck, cerv
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