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Fink v. Workers' Compensation Appeal Board6/20/2002
Roger Fink petitions for review of an order of the Workers' Compensation Appeal Board (Board) affirming the order of a Workers' Compensation Judge (WCJ) that denied Fink's petition to review and his reinstatement petition. Fink questions whether the Board erred in determining that he failed to meet his burden of proving that his work-related injury once again resulted in a loss of earning capacity, when he established that numerous return-to-work attempts failed due to restrictions and disability of the work-injury, and whether the Board erred in affirming the decision of the WCJ, when he failed to credit or to discredit competent evidence admitted at Claimant's Exhibit No. 12.
Fink sustained an injury on January 8, 1987 in the course of his employment as a coal miner with Keystone Coal Mining Corporation (Keystone). Fink and Keystone entered into a supplemental agreement dated August 2, 1989, reflecting that Fink began employment as of February 20, 1989 earning $148 per week, which, when subtracted from his average weekly wage of $775.18, reflected a wage loss of $627.18 and a temporary partial disability rate of $418.12. He qualified for the maximum partial disability benefits of $361, and the 500 weeks of benefits expired on September 28, 1998. Fink testified that he quit the janitor's job, which formed the basis for the supplemental agreement in December 1989 because of back and leg pain and that he tried other jobs and left them also because of pain. However, Fink took no action other than filing his petition to review compensation benefits on September 15, 1998 to allege any increase or change in his disability.
Keystone denied the material allegations of the petition to review and asserted that Fink's 500 weeks of partial disability expired on October 2, 1998. At the hearing in February 1999, Fink amended his petition to include a reinstatement petition. Fink presented his own testimony and that of Ahmed Elghazawi, M.D., who is board-certified in pain management, forensic medicine and forensic science and with whom Fink has treated since 1989. Keystone presented the deposition testimony of Frank T. Vertosick, M.D., who is a board-certified neurosurgeon and who examined Fink at the request of Keystone's counsel on October 14, 1999.
The WCJ's findings note that Fink described a previous low back injury at work in 1982 and another injury in January 1987. He underwent a laminectomy in 1987. John S. Collis, M.D., performed fusion surgery on Fink's spine in April 1996 and removed the herniated disc at L4-L5, which had caused Fink problems. He experienced some relief, but the symptoms returned. Dr. Collis performed another surgery in March 1997 to relieve the nerve roots from adhesions and pressure, which provided more relief than Fink had had since the beginning of his injury. A June 1999 MRI showed scar tissue at L4-L5 and deterioration at L2-L3. Dr. Elghazawi opined that nerves in the area were being trapped and ground up by scar tissue and that a herniated lumbar disc and complications of post-laminectomy syndrome caused Fink's disability. Dr. Elghazawi testified that Fink became totally and permanently disabled after he failed to have permanent improvement following the March 1997 surgery; further, Fink cannot return to his pre-injury work or engage in any substantial gainful employment.
Dr. Vertosick reviewed substantial records, took a history from Fink and examined him. He noted that Fink had not been in any type of therapy or pain management program since December 1998 and had not had shots, modalities or TENS units for more than a year, although he takes pain medication irregularly. Dr. Vertosick stated that the June 1999 MRI showed no obvious disc p
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