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Whitaker v. Workers' Compensation Appeal Board12/9/2005
Thomas Whitaker (Claimant) seeks review of an order of the Workers' Compensation Appeal Board (Board) affirming the award of disability benefits to Claimant for a closed period and the decision to terminate his benefits. The issues are whether the Workers' Compensation Judge's (WCJ) termination decision is supported by substantial competent evidence and whether the determination of Claimant's average weekly wage (AWW) is supported by the record.
Claimant was employed by Whole Foods Market, Inc. (Employer) as a meat cutter. On March 25, 2002, Claimant filed a claim petition alleging that he was disabled due to a work-related injury to his lower back, cervical spine, right ankle and upper extremities sustained on March 10, 2002 when he slipped and fell on his back while carrying a box of meat. Claimant testified that after the injury he experienced extreme burning pain down his right thigh into his ankle and foot, had problems with his neck, lower back, lumbar area, arms and legs, had difficulties performing daily activities and was unable to return to his pre-injury job. He underwent back and neck surgery in 1990 for an injury sustained while working for another employer and had been treated for post-traumatic stress disorder since 1996 by Dr. Carla Rodgers, a psychiatrist, who increased Claimant's pain medication after his March 2002 injury.
Claimant presented the deposition testimony of David S. Roby, M.D., a board-certified neurologist who treated Claimant in 1998 for neck pain, muscular syndrome, a cervical strain and spasm and cervical radiculopathy and again examined him on August 28, 2002. At that time, Claimant complained of chronic back pain, neck pain, arm tremors and headaches. Dr. Roby's diagnoses included cervical radiculopathy affecting both arms with exacerbation of the previous radiculopathy on the right and new radiculopathy on the left, exacerbation of lumbar radiculopathy, muscle syndrome, a cervical, thoracic and lumbar strain and spasm and psychological decompensation with evidence of anxiety, agitation, depression and anger. Dr. Roby opined that his diagnoses were attributable to the March 2002 injury and that Claimant could not return to work as of an examination on January 17, 2003, although he could perform some type of sedentary work later.
Employer presented the deposition testimony of L. Richard Trabulsi, M.D., a board-certified orthopedic surgeon who examined Claimant on August 23, 2002, took his history and reviewed his medical records. The records showed a surgery in 1990 for herniated discs at C5-6 and L4-5 and bulging at C3-4 without disc herniation on an October 1998 MRI; right-sided C4-5 disc protrusion and bulge, evidence of a fusion at C5-6, small central C6-7 disc herniation and mild right C8 and T1 radiculopathy on an EMG; and December 1998 nerve conduction study. The tests and studies performed after the March 2002 injury showed mild chronic lumbar radiculopathy at L3-4 and mild chronic cervical radiculopathy at C5, normal thoracic spine, normal bone scan, narrowing of discs at L4-5 and L5-S1, no acute changes in the upper or lower extremities, no fracture of the cervical and lumbar spine and no finding that would account for Claimant's left-sided symptoms. Dr. Trabulsi diagnosed contusion and sprain and strain of the cervical and lumbar spine with transient aggravation of the previous condition due to the March 2002 injury. He opined that as of his examination on August 23, 2002, Claimant had fully recovered from the effects of the March 2002 injury and had returned to baseline, i.e., "the level of symptoms prior to a particular event or incident." Dr. Trabulsi's Deposition, p. 38. The doctor stated that Claimant could resume his regul
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