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Porter v. Workers' Compensation Appeal Board2/5/2002
Claimant Marilyn Porter appeals from an order of the Workers' Compensation Appeal Board (Board), which affirmed the termination of her benefits. The question presented for review is whether a finding in an earlier termination proceeding that claimant's work-related herniated lumbar disc was a permanent condition precludes the conclusion in a subsequent termination proceeding that claimant has fully recovered from that condition. After review, we affirm the termination of benefits.
Claimant sustained neck and low-back injuries in a November 1989 work-related automobile accident. At the time of her accident, claimant was within the scope of her employment with Tabor Children's Services. Claimant subsequently received benefits pursuant to a notice of compensation payable. In 1990, employer petitioned to terminate claimant's benefits. In support of its petition, employer presented the testimony of Dr. Ronald Greene. In opposition to the termination petition, claimant presented the testimony of Dr. Daniel Rosenberg, one of her treating physicians. Dr. Rosenberg testified that claimant sustained various injuries in the automobile accident, including a herniated lumbar disc, which was a permanent condition. The Workers' Compensation Judge (WCJ) accepted Dr. Rosenberg's testimony specifically with regard to claimant's disc herniation and rejected the remainder of his testimony regarding the other injuries that claimant allegedly sustained in the accident. Specifically, the WCJ found as follows:
7. [ ] Dr. Rosenberg opined that the [numerous physical conditions that he testified to] resulted from Claimant's November 7, 1989 motor vehicle accident. He further opined that claimant remained disabled from her prior employment through the date of his last visit in April of 1991. He specifically testified that Claimant's herniated lumbar dis [at the L3-4 level] was a permanent condition. . . .
11. With regard to an L3-L4 dis herniation, the testimony and opinions of Dr. David S. Rosenberg are accepted over those of Dr. Greene. Dr. Rosenberg's opinions and testimony with regard to this limited condition are found to be both competent and credible, and are supported by both objective test results and are consistent with the claimant's complaints. All other complaints of pain and limitation offered by the claimant either by way of history to the medical experts or testimony, are not accepted by this Judge with regard to a causal relationship to the Claimant's work injury.. . . Porter v. Tabor Children's Serv., Inc., WCJ's decision and order, slip. op. at 3-5 (March 31, 1997) R.R. 6a - 7a.
Based on the foregoing, the WCJ denied employer's petition to terminate benefits and the Board affirmed on appeal.
In May 1997, employer filed a second termination petition, alleging that as of April 17, 1997, claimant was fully recovered from the 1989 work-related injury. In support of its termination petition, employer again presented the testimony of Dr. Greene. Dr. Greene testified that upon examination, claimant complained of global pain that was diffuse, non-specific and not related to muscle spasms or focal tenderness. Dr. Greene also noted that claimant displayed no evidence of muscle atrophy or sciatica, but rather demonstrated normal muscle strength, reflexes, sensation and circulation. According to Dr. Greene, he reviewed claimant's films and radiology reports, which failed to reflect a herniated disc at L3-4. He also opined that claimant's complaints were not compatible with an L3-4 disc herniation and that in his opinion, she had fully recovered from any residual effects of her earlier work injury, including the herniated disc. Importantly, Dr. Greene noted that t
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