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Harris v. Workers' Compensation Appeal Board6/26/2002
James Harris (Petitioner) petitions for review of the August 13, 2001 order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of the Workers' Compensation Judge (WCJ) which rescinded an order issued pursuant to Section 410 of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง751, and determined that Petitioner did not suffer a work-related injury resulting in disability. Petitioner questions whether the WCJ erred as a matter of law by failing to address the Section 410 order in his decision and by previously rescinding the order, and whether the WCJ's decision was based on substantial competent evidence.
On August 25, 1994, Petitioner filed a claim petition alleging that he suffered a cervical disc herniation while employed with Hale Fire Pump Company (Hale) in April 1994. Hale and its insurance carrier, PMA Insurance Company (PMA), filed an answer denying all material allegations. In November 1994, PMA filed a joinder petition alleging that Hartford Insurance Company (Hartford) was the carrier on the risk through April 6, 1994, and Hartford subsequently filed an answer also denying all material allegations. On May 9, 1995, Petitioner requested a Section 410 order, without objection from the other parties. The WCJ thereafter issued an interlocutory order on July 25, 1995 granting the request and directing PMA and Hartford each to pay one-half of Petitioner's weekly compensation.
The WCJ rescinded the Section 410 order in September 1995 after he received an independent medical evaluation (IME) report from PMA's medical expert, Dr. Richard Katz, who examined Petitioner in July 1995. Petitioner appealed, and the Board remanded the case for a full determination on the merits because Petitioner had been deprived of due process when he was denied an opportunity to object to the report. The Board did not address the Section 410 issue because it was interlocutory. On remand Petitioner testified about his injury while performing janitorial work sometime between the end of March and mid-April 1994. He stated that although he underwent two surgeries to his neck, he still suffers numbness in his extremities and other medical problems. He introduced the deposition testimony of Dr. Richard Kaplan, board certified in physical medicine and rehabilitation. His diagnosis was chronic cervical radiculopathy and chronic pain syndrome caused by a work-related injury in April 1994.
Hale, PMA and Hartford (collectively, Respondents) presented the rebuttal deposition testimony of various foundry employees and that of Dr. Katz. The doctor found no evidence of tight tendon muscles, of limitation in movement and of any nerve and blood vessel problems in Petitioner's limbs. He noted that Petitioner's gait was normal and that even though Petitioner used a cane, he did not need it for weight support. An October 1995 MRI revealed a disc herniation but no compression of the spinal cord or the nerve root structure. On the date of his examination, Dr. Katz concluded that Petitioner was neurologically normal, that he did not require any further medical care with the exception of a post-operative evaluation and that he was totally recovered from his work-related injury.
The WCJ concluded that Petitioner was not credible. The WCJ accepted Dr. Katz' testimony as credible and found Dr. Kaplan's testimony less credible. Consequently, the WCJ denied Petitioner's claim petition, finding that he had not suffered a disabling work-related injury. The WCJ did not address the Section 410 order or his decision to rescind the order. The Board affirmed, concluding that there was substantial evidence to support the finding that Petitioner had no
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