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Brown v. Workers' Compensation Appeal Board2/22/2002
Submitted: December 21, 2001
OPINION NOT REPORTED
Oscar Brown (Claimant) petitions for review of the August 30, 2001 order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of the Workers' Compensation Judge (WCJ) granting a suspension petition filed on behalf of Chestnut Hill Hospital (Employer), which suspended Claimant's benefits effective August 15, 1997. We affirm.
On June 7, 1997, while working for Employer as a nurse's aide, Claimant sustained a work-related injury in the nature of a right knee strain while lifting a patient. Pursuant to a notice of compensation payable, Claimant began receiving compensation at the rate of $317.70 per week based upon an average weekly wage of $476.55.
On September 12, 1997, Employer filed a modification/suspension petition alleging that as of August 20, 1997, Claimant had sufficiently recovered from his work injury to be capable of returning to a light-duty sedentary "unit secretary" position that was referred to him. Employer's petition further alleges that Claimant failed to exercise good faith and did not follow through on the job referral. Claimant filed an answer denying Employer's material allegations.
The WCJ accepted the testimony of Employer's medical witness, Dr. Michael Cheikin, who is board-certified in physical medicine and rehabilitation, as being more credible than the testimony of Claimant's medical expert, Dr. Zohar Stark, a board-certified orthopedic surgeon. Dr. Cheikin opined that Claimant had a work-related right knee strain and a possible right lumbosacral strain that was unrelated to the work injury. The doctor saw no causal relationship between Claimant's June 1997 knee injury and the onset of Claimant's alleged back pain in July 1998. At the time of his July 28, 1998 examination of Claimant, Dr. Cheikin opined that Claimant could return to the unit secretary position, but not to his position as a nurse's aide.
The WCJ also accepted as credible the testimony of Thomas Neff, an investigator licensed to do surveillance in Pennsylvania. Neff testified that he observed and videotaped Claimant on three separate days and that he observed Claimant move about without any restrictions, difficulty or discomfort in a normal range of motions and activities. Neff also observed Claimant lift a hardtop carrier to the top of his van and load items into his van.
The WCJ rejected Claimant's testimony that his June 1997 knee injury aggravated an April 1997 low back injury. The WCJ noted that prior to 1998, Claimant's treating physicians failed to mention anything in their reports about a back injury or lower back pain.
The WCJ further found that on August 15, 1997, Claimant was offered suitable light-duty work as a unit secretary, which would have paid him a wage equal to his pre-injury wage. The WCJ, however, determined that Claimant did not exercise good faith in attempting to return as indicated by the fact that he did not even attempt the job before complaining of low back pain.
Therefore, the WCJ found that Employer was entitled to a suspension of benefits effective August 15, 1997, and that Claimant was only entitled to receive ongoing medical benefits for his right knee condition, not his back condition. Consequently, the WCJ granted Employer's suspension petition effective August 15, 1997, and dismissed Employer's modification petition as moot.
The Board affirmed and Claimant appealed to this Court. On review, this Court is limited to a determination of whether the necessary findings of fact are supported by substantial evidence, whether errors of law have been committed or whether constitutional rig
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