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Dorzinsky v. Workers' Compensation Appeal Board6/12/2002
Michael Dorzinsky appeals from the order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of the Workers' Compensation Judge (WCJ) terminating benefits. Dorzinsky contends that (1) the evidence is not sufficient to support the termination of benefits and (2) the Board erred in refusing to direct a rehearing pursuant to Section 426 of the Workers' Compensation Act (Act). There is no merit to these contentions and, therefore, we affirm.
In August of 1993, Dorzinsky injured his neck and right arm when he fell while working as a welder for Air Products Chemicals, Inc. He received temporary total disability benefits for several months while he remained unable to work and underwent therapy for the injury. In January of 1994, just before he was scheduled to return to his pre-injury work, Dorzinsky suffered an exacerbation of his neck and arm pain as a result of a non-work related car accident. Subsequently, he underwent a surgical fusion at C4-5 and C5-6 and, after a period of recovery and rehabilitation, he returned to work.
In September of 1997, Air Products filed the present petition to terminate its liability under the Act as of July 14, 1997. Following a hearing and the receipt of deposition testimony, the WCJ granted the petition. Dorzinsky appealed to the Board asserting that the WCJ "erred in relying upon the opinion of the independent medical examiner," and arguing that the Board should direct a rehearing to permit Dorzinsky to submit deposition testimony by his treating chiropractor. The Board denied the request for rehearing and affirmed the WCJ. Dorzinsky filed the present appeal in which he again challenges the sufficiency of the evidence and argues that he is entitled to a rehearing.
In order to terminate its liability under the Act, Air Products was required to prove that Dorzinsky had fully recovered and all disability due to the injury had ceased. See Benson v. Workmen's Comp. Appeal Bd. (Haverford State Hosp.), 668 A.2d 244, 247 n. 4 (Pa. Cmwlth. 1995). Air Products met this burden by introducing the deposition testimony of Dr. J. Tieg Port, the orthopedic surgeon who performed an independent medical examination on July 14, 1997. Port opined that, based on his personal examination and review of the diagnostic tests, Dorzinsky had fully recovered from the work injury and that any remaining pain was solely due to the chronic degenerative disc disease that was present before the work injury. This was the only medical evidence on the issue of full recovery. Inasmuch as the WCJ accepted it as credible, this testimony amply supports the finding that Dorzinsky fully recovered from his work injury and, therefore, he is ineligible for benefits under the Act.
Dorinzsky has not established grounds for a re-hearing under Section 426. First, such a request is properly brought by separate action in the form of a petition to the Board accompanied by averments and perhaps documentation in support thereof. See Cisco v. Workmen's Comp. Appeal Bd. (A&P;Tea Co.), 488 A.2d 1194, 1196 (Pa. Cmwlth. 1985). Dorzinsky did not file such a petition nor did he request a remand in his appeal form. He asked for a remand in his argument to the Board. At that point, Dorzinsky had not demonstrated any cause for the Board to remand and, therefore, the Board properly denied the request. Second, as the Board noted, the record before the WCJ does not provide cause for granting a re- hearing based on ineffective assistance of counsel. At the hearing on October 16, 1998, Dorzinsky's hearing counsel told the WCJ that she would determine within two weeks whether to submit additional evidence. The WCJ left the record open for several months thereafter but did
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