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Stitt v. Workers' Compensation Appeal Board6/7/2002
Thomas Stitt (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 modification petition filed on behalf of Alpha Steel Erectors (Employer). We affirm.
Employer employed Claimant as an iron worker. In the course and scope of his employment on December 21, 1994, Claimant sustained injuries to his knees when he slipped and fell on rocky ground. Claimant received total disability benefits pursuant to a notice of workers' compensation payable (NCP) issued by Employer. The NCP, however, only described Claimant's injury as a " ight knee sprain." Approximately two years later, in December of 1996, Employer filed a termination petition alleging that Claimant had fully recovered from his work-related injury and that any remaining disability is attributable to his non-work-related degenerative arthritis. Claimant filed an answer alleging that he continues to be disabled as a result of his original work injury.
Claimant thereafter filed a petition to review his compensation benefits. Specifically, Claimant alleged that the original NCP was incorrect as it failed to indicate that he injured both knees in the incident of December 21, 1994. Employer filed an answer denying that Claimant sustained any injury to his left knee in this incident. Rather, Employer alleged that any conditions of Claimant's right or left knee were the result of severe osteoarthritis. The matters were assigned to the WCJ and proceeded with hearings.
At these hearings, Employer amended its termination petition to include an alternative request that Claimant's benefits be modified based upon available work within his limitations. This request was based upon a job offer Employer made to Claimant regarding a light-duty cook's assistant position with the YWCA of Butler, Pennsylvania. This position was offered to Claimant via a letter dated January 20, 1997, from a work rehabilitation program utilized by Employer. The position was to be available as of January 30, 1997, for forty hours per week at a rate of pay of $15.00 per hour and was to be funded by Employer. The letter instructed Claimant to contact Margaret Clawson, the YWCA's executive director, upon arrival for work. Claimant, however, failed to report for work.
In opposition to Employer's termination/modification petition and in support of his review petition, Claimant testified on his own behalf at the hearings before the WCJ. Claimant related a history of his work injuries and his ongoing complaints of pain. On the evening of the work incident, Claimant indicated that he sought treatment at a local hospital as both of his knees were swelled "like two footballs." (R.R. at 9a). Claimant indicated that he later had a total knee replacement in his right leg and will need the same procedure on his left leg.
Additionally, Claimant admitted receiving the January 20, 1997, letter regarding the cook's assistant position with the YWCA. Claimant indicated that he immediately visited with his treating orthopedic surgeon, Dr. Larry Sotos, who refused to release him to this position. Dr. Sotos then sent a letter to Employer dated January 28, 1997, indicating as much. Claimant did not believe he could perform this position. Hence, he declined to accept the same. At a later hearing, Claimant admitted that he was upset upon receiving the January 20, 1997, job offer letter. Claimant indicated that he called Ms. Clawson or someone at the YWCA and informed them that he was "disabled and couldn't do that [cook's assistant position]." (R.R. at 23a).
Claimant also presented the deposition testimony of Dr. Sotos, who is
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