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Clouser v. Workers' Compensation Appeal Board2/12/2002
Submitted: December 7, 2001
OPINION NOT REPORTED
Tina Clouser (Claimant) petitions for review of a decision of the Workers' Compensation Appeal Board (Board) affirming the decision of a Workers' Compensation Judge (WCJ) which granted Claimant's claim petition for a closed period. We affirm.
On November 1, 1996, Claimant filed a claim petition alleging that she sustained a work-related injury in the nature of a herniated disc and bulging disc while employed as a nurse's aide by Evergreen Manor (Employer) on September 3, 1996. Employer's counsel notified the Bureau of Workers' Compensation (Bureau) that he was representing Employer in this matter. The petition was assigned to a WCJ on November 25, 1996, through a notice of assignment. On January 2, 1997, Employer filed an answer denying the material allegations.
A hearing was held before a WCJ at which Claimant's counsel argued that Employer failed to file a timely answer within twenty days of the date the petition was assigned to the WCJ. In response, Employer's counsel asserted that the Bureau mistakenly sent the notice of assignment to the Delaware office of Employer's insurance carrier instead of the Pittsburgh office which was processing the claim. Employer's counsel argued that he was not included on the notice of assignment despite the fact that he had entered his appearance on behalf of Employer before the notice of assignment was filed. Employer's counsel further averred that he filed an answer as soon as he received the notice of assignment.
The WCJ concluded that Employer's answer was timely filed due to the Bureau's error of failing to send a copy of the notice of assignment to Employer's counsel. (R.R. at 53a). The WCJ further decided that Claimant was not prejudiced or surprised by any matters raised in Employer's answer.
Thereafter, Claimant testified that she began working for Employer on August 27, 1996, as a nurse's aide. Claimant further testified that after bathing a patient on September 3, 1996, she felt a sharp pain up through her back while kneeling to pull up the patient's socks. Claimant notified her supervisor of her injury and left work for the day. (R.R. at 56a-57a). Claimant testified that she had previously treated with a chiropractor for approximately six to eight months in 1991 for a curved vertebra. (R.R. at 58a-59a). Moreover, Claimant averred that the present pain in her back caused by the event on September 3, 1996, runs up her right side and through her shoulders. Claimant testified that she suffers a radiating pain from her right leg down to the bottom of her foot. (R.R. at 60a). Finally, Claimant maintained that she still experiences pain caused by her work-related injury. (R.R. at 78a).
At a subsequent hearing on July 7, 1998, Claimant testified that her only income was state assistance in the amount of $365.00 per week and food stamps and Medicare in the amount of $13.00 per week. (R.R. at 108a). On cross- examination, Claimant admitted that in 1992, she complained to her chiropractor of back pain caused by lifting and carrying. (R.R. at 113a). Additionally, Claimant admitted that she did not receive medical treatment for her back between December 6, 1996, and April of 1998. (R.R. at 115a).
Additionally, Claimant presented Douglas Scott Fugate, M.D., a board certified orthopedic surgeon, who first examined Claimant on September 13, 1996, at which time she was complaining of pain radiating down her right leg to the bottom of her foot. (R.R. at 135a-136a). Dr. Fugate testified that a MRI revealed a herniated disc between the fourth and fifth lumbar vertebrae and eccentric displacement of the disc to the right side which wa
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