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Darrall v. Workers' Compensation Appeal Board2/27/2002
Shannon Darrall (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) which affirmed the decision of a Workers' Compensation Judge (WCJ) granting Claimant's Claim Petition for a closed period and then suspending her benefits based on Claimant's ability to perform a light-duty job. We affirm in part and reverse in part the decision of the WCJ and remand this case for the reasons set forth below.
On February 1, 1999, H.J. Heinz Co. (Employer) filed a Notice of Workers' Compensation Denial (Notice of Denial) declining to pay Claimant workers' compensation benefits for a work-related injury that occurred on January 18, 1999 because it contended that Claimant's disability lasted less than seven days. However, the Notice of Denial did indicate that Employer would pay Claimant's reasonable, related and necessary medical expenses (Claimant's Exhibit No. 2). Thereafter, Claimant filed a Claim Petition alleging that, on January 18, 1999, she sustained a head and right ear injury that occurred when she was struck by a box kicker machine while working for Employer. Employer filed an Answer denying the allegations set forth in Claimant's Petition. Claimant also filed a Penalty Petition alleging that Employer violated the Workers' Compensation Act (Act) by failing to investigate and pay her claim in accordance with Section 406.1 of the Act.
On May 5, 1999, Employer sent Claimant's attorney a letter offering her several light-duty jobs, including the positions of filler, tag checker and vegetable inspector. Specifically, the letter stated that " y sending you this letter is notice to your client that such jobs are available." In response, Claimant's attorney sent Employer's attorney a May 6, 1999 letter stating that Claimant "has done the tag checker position and is willing to accept a return to work at this position." The letter also stated that "I request that your client advise my client directly of her work schedule, with the understanding that accommodation will be made for physical therapy, testing, and medical treatment" (Claimant's Exhibit No. 9). However, Employer apparently never provided this information to Claimant and Claimant never did return to work at this position. The reasons why this occurred are unclear, although the May 13, 1999 status report of Thomas Bellay, who is a workers' compensation case manager for Employer's insurance carrier, states: "JOB OFFER SENT TO CLT ON 5/5/99 WITHIN DR
TALBOTT'S 4/14/99 LT DUTY WORK CAPS. JOBS INCLUDE FILLER, TAG CHECKER & SOUP FILLER OPERATOR. PAY RATE $12.285/HR 40 HRS/WK. PER DEFENSE ATTY, WHO DISCUSSED WITH CLMT ATTY, IT IS NOT ANTICIPATED THAT THE CLMT WILL RTW [return to work] AS SHE WANTS TO SEE HER OWN NEUROLOGIST ON 5/24/99" (Dep. of Bellay, Nov. 16, 1999, Volume II, Exhibit A, p. 6) (emphasis in original). Therefore, this case proceeded to litigation before the WCJ.
At the hearings before the WCJ, Claimant presented the testimony of Dr. Chen, who is board certified in otolaryngology and a co-director of the Hearing and Balance Center at Allegheny University Hospital where advanced hearing and balance tests take place. He first examined Claimant on March 16, 1999, who was suffering from hearing loss, dizziness and tinnitus. Dr. Chen performed an electronystagmography, or ENG, which is an objective test that measures inner ear and brain function. The saccade testing, where the patient visually tracks a strobe light, showed decreased latencies, which is a "central" finding. The rotational chair testing, where the patient is spun around and eye motions are recorded, was also abnormal. Dr. Chen concluded that these problems were caused by Claimant's work-related injury.
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