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Parker v. Workers' Compensation Appeal Board3/9/1999
Submitted: January 29, 1999
Victoria Parker (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) which affirmed the decision of a Workers' Compensation Judge (WCJ). The WCJ's decision granted Dock Terrace Nursing Center's termination petition and denied Claimant's reconsideration of utilization review petition pursuant to the Workers' Compensation Act (Act).
Claimant suffered an injury to her neck and back on February 28, 1984, during the course and scope of her employment as a nursing assistant for Dock Terrace Nursing Center (Employer). Claimant has been treated continuously for her work-related injury since 1984 by various medical personnel including physical therapists, a neurologist, and several chiropractors. Claimant received workers' compensation benefits from the time of her injury until her partial disability payments were commuted on September 21, 1993.
On October 2, 1993, Employer filed a request for utilization review challenging the reasonableness and necessity of Claimant's chiropractic treatment. The Utilization Review Organization found this treatment unreasonable and unnecessary. Claimant filed a request for reconsideration, which affirmed the initial determination that the challenged treatment was neither reasonable nor necessary. On October 11, 1994, Claimant filed a petition to review consideration of utilization review.
On June 22, 1995, Employer filed a petition for termination of benefits alleging full recovery as of May 16, 1995. This petition was consolidated for Disposition with Claimant's utilization review petition.
By decision and order dated January 16, 1997, the WCJ denied Claimant's utilization review petition. The WCJ accepted as credible Dr. Jonathan McCulluogh's testimony that Claimant's chiropractic treatments after August 31, 1993, were not reasonable or necessary and rejected Dr. Brian Solofsky's testimony that Claimant's work-related injury would require chiropractic treatment for the rest of her life. The WCJ also granted Employer's termination petition, finding as credible Dr. McCulluogh's opinion that as of May 16, 1995, Claimant had fully recovered from her February 28, 1984 work-related injury.
The WCJ made the following pertinent findings of fact and Conclusion of law:
"4. [Employer] presented the testimony of Dr. Jonathan McCulluogh, who examined the Claimant in May 1995. He testified that:"
"e. It was Dr. McCulluogh's opinion that Claimant was deconditioned because of ongoing chiropractic care, and that as long as Claimant received chiropractic care, she would remain deconditioned."
"5. The undersigned finds the testimony of Dr. McCulluogh to be more persuasive than that of Dr. Solofsky . . . . Although the undersigned finds Claimant's testimony credible, the undersigned considers Dr. McCulluogh's testimony to be dispositive."
"6. Based on the testimony of Dr. McCulluogh, the undersigned finds that Claimant's chiropractic treatments after August 31, 1993 were not reasonable and necessary. Additionally, the undersigned finds that the Claimant had fully recovered from her work injuries as of May 16, 1995."
"2. [Employer] has the burden of proof on a termination petition to establish that Claimant has fully recovered from her work injury. [Employer] has met that burden."
(WCJ's decision at 3-4; Findings of Fact Nos. 4-6; Conclusion of Law No. 2.)
Claimant appealed to the Board, which affirmed the WCJ's order, concluding that:
"The had substantial evidence to support the disputed Fact Findings. We do not find the Fact Findings to be in
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