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Merchant v. Workers' Compensation Appeal Board9/1/2000
SUBMITTED: June 30, 2000
Claimant Robert Merchant and Employer TSL, Ltd. (TSL) each petition for review of the December 2, 1999 order of the Workers' Compensation Appeal Board (Board) that reversed in part and affirmed in part the October 27, 1998 decision of the Workers' Compensation Judge (WCJ) granting Claimant's claim petition and directing Employer to commence payment of total temporary disability payments in the amount of $248.06 per week effective August 16, 1995, less a credit for payments made to Claimant of $189.88 per week under the workers' compensation law of West Virginia. Specifically, the Board reversed those parts of the WCJ's decision and order awarding benefits to Claimant from August 16 to September 8, 1995 and finding that Claimant's diabetes insipidus was work-related. The Board affirmed the remainder of the decision in all other respects.
For the reasons that follow, we vacate that portion of the Board's order providing that Claimant receive total temporary disability benefits as of September 8, 1995 and remand to the Board to remand to the WCJ for a determination as to when Claimant finally stopped receiving workers' compensation payments from West Virginia. Further, we affirm that portion of the order providing that Claimant failed to prove by unequivocal medical testimony that his diabetes insipidus was work-related.
On August 15, 1995, Claimant sustained a work-related injury in the course of his employment as a paint and body man. Specifically, he was injured when, in the course of replacing some doors and frames, he fell onto a concrete floor as a result of an electrical shock that occurred when he was welding a metal doorframe.
On October 2, 1995, Claimant filed two identical claim petitions, naming both TSL and Transportation Services, Inc. as his employer. Transportation Services, Inc. did not file an answer to the claim petition, but TSL responded that it was a West Virginia corporation, that Claimant was not an employee of Transportation Services, Inc., that Claimant was receiving compensation pursuant to a claim he had filed in West Virginia and that, accordingly, Claimant was ineligible to receive any compensation in Pennsylvania by virtue of Section 322 of the Workers' Compensation Act (Act). (Findings of Fact Nos. 2 and 3.)
In support of his claim petition, Claimant presented the deposition testimony of Dr. Gunasiri Samarasinghe and Dr. Anne F. Walczak. Dr. Samarasinghe first saw Claimant in January 1996. Dr. Samarasinghe took a history from Claimant and then conducted a physical examination of him. A board-certified anesthesiologist with special qualifications in pain management, the doctor diagnosed Claimant with cervical pain syndrome. The doctor opined that Claimant's condition was causally related to the August 1995 work incident "because it was the type of injury that can cause cervical pain syndrome and because the Claimant was doing fine prior to the injury." (Finding of Fact No. 17.)
Further, Dr. Samarasinghe testified that Claimant was incapable of returning to his pre-injury position due to the upper body activities involved and that his "prognosis for recovery was guarded because of the length of time he has been symptomatic." (Finding of Fact No. 17.) More specifically, the doctor stated that "Claimant could tolerate a sedentary level of work and progress upward, with a weight restriction of 10-20 pounds if his next examination is positive." (Finding of Fact No. 18.) The doctor opined that "Claimant should avoid any bending, twisting, stooping or reaching activities, particularly using the upper body, but he did not issue a prescription for restrictions since the Claimant was already of
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