C.P. Martin Ford2/14/2001
Submitted: March 10, 2000
C.P. Martin Ford (Employer) petitions for review from an order of the Workers' Compensation Appeal Board (Board) which affirmed the order of a Workers' Compensation Judge (WCJ) granting the Claim Petition filed by Resad Dzubur (Claimant). We vacate and remand.
On October 21, 1993, Claimant began receiving compensation benefits pursuant to a Notice of Compensation Payable for a lumbar strain that occurred while he was working for Norristown Ford (Norristown). In April of 1996, Claimant returned to work with a different employer and, in August of 1996, he started working for Employer. Thereafter, Claimant filed a Claim Petition alleging that, on September 25, 1996, he sustained an injury while working for Employer in the nature of "pain, tingling and numbness in back and radiating down both legs" that occurred when he was inserting an electronic part under a dashboard. Employer filed an Answer denying the allegations set forth in Claimant's Claim Petition. Claimant also concurrently filed a Reinstatement Petition alleging that, on September 25, 1996, he sustained a recurrence of the September 20, 1993 work injury that occurred while he was working for Norristown. Norristown filed an Answer asserting that Claimant's disability is the result of a new injury rather than the recurrence of a previous injury. Because Employer and Norristown agreed that Claimant was injured but disagreed as to how liability should be apportioned, the WCJ issued an order pursuant to Section 410 of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 751, instructing Employer and Norristown to each pay fifty percent of Claimant's compensation benefits and medical expenses.
At the hearings before the WCJ, Claimant presented the testimony of Phillip G. Perkins, M.D., who began treating Claimant on August 22, 1995. When asked what effect the work-related accident of September 25, 1996 had on Claimant's September 20, 1993 work injury and what he understood the term aggravation to mean, Dr. Perkins stated:
If you aggravate a pre-existing condition, you have a pre-existing condition made worse or brought to light by whatever you did.
I actually believe, frankly, that this all stems from his original injury, and I'm told I should use the word, recurrence. I often use the term aggravation of a pre-existing condition without realizing the legal connotations of it.
What I will say is this: that had he done what he did at [Employer] and had he not had his previous problem, I do not believe he would have hurt his back.
So I believe that his original lumbar degenerative disc disease and disc herniation that resulted in the surgery, that it just carried on plaguing him. I don't believe this is a new problem, in other words. (Dep. of Dr. Perkins, 9/03/97, p. 31).
When asked whether the September 25, 1996 accident at work made Claimant's condition worse, Dr. Perkins explained that "worsen, to me, is to, made to feel less well. In other words, he feels more pain as a result of an incident; therefore, he is worse off than he was before. Has it made mechanic instability worse, I doubt it. That process remained there from his original problem and it will continue to crop up every now and again, when he does these things." (Dep. of Dr. Perkins, 9/03/97, pp. 39-40). The WCJ accepted the testimony of Dr. Perkins as credible.
Employer presented the testimony of Dr. Morris, who treated Claimant from September 22, 1993 until April 18, 1996. Based on his prior treatment of Claimant and his review of Claimant's medical records from Dr. Perkins, Dr. Morris concluded that the work-related
Page 1 2 3 Pennsylvania Employee Leasing Services
Employee Leasing Services
|