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Clawson v. Workers' Compensation Appeal Board2/27/2002
Submitted: January 11, 2002
OPINION NOT REPORTED
Marsha Clawson (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) affirming the order of the Workers' Compensation Judge (WCJ) which granted a termination petition filed by US Airways (Employer) and denied Claimant's petition to review compensation. We affirm.
Employer employed Claimant as a flight attendant. On April 2, 1995, Claimant suffered an injury to her left shoulder when she pulled on a beverage cart. Thereafter, Claimant began receiving worker's compensation benefits pursuant to a notice of compensation payable (NCP). The NCP described Claimant's injury as "(L) SHOULDER GIRDLE STRAIN." See Reproduced Record (R.R.) at 3a.
On March 21, 1997, Employer filed a termination petition alleging therein that Claimant had fully recovered from the April 2, 1995 left shoulder girdle strain as of August 20, 1996. Claimant filed a timely answer denying the material allegations contained therein.
On March 5, 1999, Claimant filed a review petition alleging as follows: "The employer has issued a Notice of Compensation Payable indicating a shoulder girdle strain. It is claimant's contention that a shoulder strain did occur, however, the strain caused an aggravation of the claimant's pre-existing condition of chronic lymphoedema (sic)." See Certified Original Record (O.R.), Petition to Review Compensation Benefits. Employer filed a timely answer denying the material allegations contained therein.
The petitions were consolidated and hearings before the WCJ ensued. In support of her review petition and in opposition to Employer's termination petition, Claimant testified on her own behalf and presented the deposition testimony of medical expert Judith O. Hopkins, M.D., and the testimony of fact witnesses Nancy Leigh Gilmer, John Carithers, and Jim Langhan. In support of its termination petition and in opposition to Claimant's review petition, Employer submitted the deposition testimony of medical expert Victoria M. Langa, M.D., and the deposition testimony of two surveillance investigators, James McClellan and Luis Olivera.
Based on the evidence presented, the WCJ found that Employer met its burden of proving that Claimant had fully recovered from the April 2, 1995 work-related left shoulder girdle strain. In making this finding, the WCJ found credible the testimony of Employer's medical expert, Dr. Langa, and rejected the testimony of Claimant's medical expert, Dr. Hopkins. The WCJ found that Dr. Langa offered unequivocal and unrebutted testimony that Claimant had fully and completely recovered from the April 2, 1995 sprain/strain injury. The WCJ found further that Dr. Hopkins was not asked and therefore, did not testify regarding the status of Claimant's musculoskeletal injuries. The WCJ stated that Dr. Hopkins related Claimant's disability to Claimant's pre-existing chronic lymphedema and cellulitis, which the WCJ found was not caused by or aggravated by Claimant's April 2, 1995 work-related injury.
The WCJ found that Claimant did not meet her burden of proving that she aggravated her pre-existing condition of chronic lymphedema as a result of working as a flight attendant for Employer on April 2, 1995. Relying on Commercial Credit Claims v. Workmen's Compensation Appeal Board (Lancaster), 556 Pa. 325, 728 A.2d 902 (1999), the WCJ stated that in a termination proceeding, the claimant and not the employer bears the burden of establishing a causal relationship between the work-related injury and subsequently alleged aggravation of a pre-existing condition where the NCP does not recognize an aggravation of a pre-existing condition.
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