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Jim Duke t/a Mick's Bar v. Workers' Compensation Appeal Board2/15/2002
Submitted: September 21, 2001
OPINION NOT REPORTED
Jim Duke t/a Mick's Bar (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) which reversed the decision of a Workers' Compensation Judge (WCJ) granting Employer's Termination Petition. We affirm.
Pursuant to an order of a workers' compensation judge dated March 7, 1996, Doreen Miller, formerly Doreen Neison, (Claimant) began receiving compensation benefits for work-related injuries to her "neck, hands, shoulders, and back ... while in the course of employment on May 28, 1991." (Conclusion of Law No. 1). Thereafter, Employer filed a Termination Petition alleging that Claimant fully recovered from her work-related injuries.
In support of its Termination Petition, Employer presented the deposition testimony of Warren Bilkey, M.D., who examined Claimant on March 18, 1998. During the examination, Dr. Bilkey examined Claimant's head, neck, shoulders, back, sacroiliac joints, hips and lower limbs. (N.T. 8/14/98, p. 47).
After conducting the examination, Dr. Bilkey determined that Claimant fully recovered from her work-related injuries. (N.T. 8/14/98, p. 48). On cross- examination, however, Dr. Bilkey stated that he did not examine Claimant's hands. (N.T. 8/14/98, p. 57). The WCJ accepted the testimony of Dr. Bilkey as credible. Claimant did not present any medical evidence.
In order to determine whether Employer had sustained its burden of proving that Claimant fully recovered from all of her work-related injuries, the WCJ first had to determine what injuries were found to be compensable in the March 7, 1996 decision granting Claimant's Claim Petition. In Finding of Fact No. 59 of that decision, the previous workers' compensation judge found that "Claimant sustained a work-related injury to her neck, shoulders, back, and legs while in the course of employment..." However, in Conclusion of Law No. 1, the workers' compensation judge concluded that Claimant sustained a work-related injury to her "neck, hands, shoulders, and back..." (emphasis added). In a decision and order dated July 30, 1999, the WCJ found that "I note that although an injury to claimant's hands was referenced in the Conclusions of Law ... [of the] March 7, 1996 decision, this reference was not supported in the Findings of Fact. [The previous workers' compensation judge] described his hard findings as to the nature of claimant's injury in Finding of Fact #59. Dr. Bilkey credibly opined that claimant had fully recovered from all of those adjudicated injuries as of the date of his evaluation." (Finding of Fact No. 5). Accordingly, the WCJ granted Employer's Termination Petition. Claimant appealed to the Board, arguing that Dr. Bilkey's testimony cannot support a termination of benefits because he did not examine her to determine if she recovered from the injury to her hands. The Board agreed with Claimant and reversed the decision of the WCJ. Additionally, the Board determined that Employer presented an unreasonable contest and ordered Employer to pay Claimant's attorney's fees. This appeal followed.
Employer argues that the Board erred by reversing the WCJ's grant of the Termination Petition because it mischaracterized and improperly evaluated the March 7, 1996 decision. Employer contends that, although a contradiction existed between the Findings of Fact and Conclusions of Law, it was clear from the evidence that the May 28, 1991 injury did not result in any specific trauma to Claimant's hands or arms. Employer also argues that the Board erred by determining that Employer presented an unreasonable contest and ordering it to pay Claimant's attorney's fees.
In
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